Moore v. Lewis

21 Ala. 580 | Ala. | 1852

G-OLDTHWAITE, J.

— The rule is, that a suit cannot be maintained for a legacy until the will has been admitted to probate, Kerr v. Moore, 9 Wheat. 565; Sheppard v. Nabors, 6 Ala. 631; and as sentences of foreign courts do not operate, except as evidence, beyond the limits of their jurisdiction, the proof or probate of the will in Cuba conferred no authority to proceed upon it as a will in this State, although it might be evidence upon which to have it admitted to probate here.

The title of the plaintiff in error to the legacy depended upon the will, and until he had established it as such, according to the laws of this State, he could assert no right under it in the courts of this State. Armstrong v. Lear, 12 Wheat. 169. Had administration been granted in Cuba, and the property remitted to this State by the personal representative, for the purpose of paying legacies, no suit could be maintained for it, in the absence of a specific appropriation, without administration taken out here. Story on Conflict of Laws, § 515. It would be calling on the court to administer personal estate, without having the personal representative before it, which cannot be done. Logan v. Fairlee, 2 Sim. & Stu. 284.

The decree of the Chancellor was correct, and the judgment is affirmed.