50 N.J.L. 324 | N.J. | 1888
The opinion of the court was delivered by
This suit involves title to certain lands situate in the county of Middlesex, in this state, of which Isaac J. Potter died seized.
The deceased, whose domicile was in California, died May 19th, 1885. By his last will, dated November 19th, 1884,
The testator’s will was in writing, and signed by him, but not executed by him in the presence of subscribing witnesses. It is admitted that the will was made and executed in compliance with the laws of California, and that under the laws ■of that state it would be a valid testamentary disposition of .lands. It was not made and executed in conformity with the law of this state, which requires all wills to be executed in the ■presence of two witnesses, present at the same time, who shall -subscribe their names thereto as witnesses in the presence of -the testator. Rev., p. 1247, § 22. The certificate presents ■the question whether a will made and executed by a nonresident testator, in such a manner as by the law of his domi•cile would be a valid devise of lands, can operate to devise ■lands in this state, the will not having been executed in conformity with the law of this state.
The incidents of real estate, its disposition and the right of succession, depend upon the lex rei sitce. The validity of be•quests of personal property depends upon the law of the testator’s domicile, and the validity of devises of real property upon the law of the state where the lands lie. Hence a will ■executed according to the law of the testator’s domicile will pass personal property wherever situate, but with respect to ■devises of lands the will must be executed according to the formalities prescribed by the law of the state in which the land ••is situated. 4 Kent 513; Story on Conflict of Laws, § 474; Wharton on Conflict of Laws, § 585; Jones v. Habersham, 107 U. S. 174; 179; Robertson v. Pickrell, 109 U. S. 608; Pratt v. Douglas, 11 Stew. Eq. 516; 1 Jarman on Wills (Randolph’s ed.) 1, and note b.
The courts of one state are without jurisdiction over title to lands in another state. The clause of the federal constitution which requires full faith and credit to be given in each state to the records and judicial proceedings of every other state, ap
The testator’s will was duly probated in the office of the clerk of Tuolumna county, California, May 27th, 1885, and an exemplified copy thereof filed and recorded in the surrogate’s office of Middlesex county, in this state, May 2d, 1887, in compliance with the act of the legislature of May 11th, 1886. Rev. Sup., p. 775. It is contended by the plaintiff that by force of this statute a will not executed in the manner prescribed by the law of this state is nevertheless operative to devise lands in this state if .it be executed according to the-formalities required for a devise of lands by the law of the' state or country where the testator was domiciled.
The act in question provides that when any will shall have-been admitted to probate in any state or territory of the United States or the District of Columbia, or in any foreign state or kingdom, and any person shall desire to have the same recorded in this state, for the purpose of making title to lands■ or real estate in this state, it should be lawful for the surro
This statute was originally passed March 28th, 1866. Nix. Dig., p. 1035, § 40. It was repealed in 1872 (Pamph. L., p. 58), and restored in 1873 (Pamph. L.,p. 168), and was included in the Orphans’ Court act in the Revision of 1874. Rev., p. 757, § 26. It was re-enacted with some amendments in 1882 (Pamph. L., p. 112), and again in 1886, with some other amendments (Rev. Sup., p. 775); but the act as it now stands is, so far as concerns this suit, substantially the same as it was when it was passed in 1866. The act as passed in 1866 was entitled “A supplement to the act relative to the probate of wills from other or foreign states,” which was an act passed April 15th, 1846. Nix. Dig., p. 1032, § 31. The act of 1846, to which the act of 1866 was a supplement, was originally passed March 6th, 1828, under the title of “An act relative to the probate of wills” (Harr. Com. 195), and with some additions, of no importance in this case, was included in the Revision of 1846, under the title above mentioned.
When the act of 1828, providing for the record of foreign-wills, was passed, statutes were in force making the record of wills originally proved under the laws of this state, either in the Prerogative Court or before the surrogate, or transcripts - thereof, competent evidence of the same validity and effect as
None of these acts which make the record of probate or -transcripts thereof evidence was designed to change the law with respect to the manner in which wills were required to be ■executed to make a valid devise of lands. When these acts were passed, and down to the act of 1851, a will of personalty
The act of 1846, which applies to foreign wills, must receive the same construction ; for by the third section of that act it is declared that such record or certified copies thereof should be evidence in the same manner and have the same force and effect as if such will had been proygd in the usual manner under the existing laws of this state. It was so decided in Allaire v. Allaire, supra.
It was contended by the plaintiff, to sustain this devise, that the act of 1886 {Rev. 8up.,p. 775), requires a broader construction. The argument was based upon the phrase, “ shall desire to have the same recorded in this state for the purpose of making title to lands or real estate in this state,” and the fact that conveyances theretofore or thereafter made by executors or devisees were validated. The reason for the introduction of the words above quoted, with respect to the purpose for which such will was recorded, is apparent. The act of 1846 contemplated letters testamentary or of administration upon the recording of the will, and required a bond with security from non-residents for the faithful administration of the testator’s estate. In some instances the record of a foreign
In preparing this opinion I have not overlooked the fact that upon the testator’s death in 1885 the lands in question descended to his heirs-at-law, and that their title was vested before the act of 1886 was passed. But inasmuch as the act of 1882, which was in force when the testator died, is in a'll respects material to this controversy identical with the act of 1886, I preferred to consider the case as if controlled by the-latest act on this subject.