76 Miss. 955 | Miss. | 1899
delivered the opinion of the court.
The demurrer to the bill of appellants was properly sustained. Until the will under which appellants’ claim has been probated the devisee could not introduce it in evidence to show title. It is true that when probated the will must relate back to the death of the testatrix, but until probated the devisees have no standing in court authorizing them to enjoin the prosecution of suits at law by the heirs at law. The title to the property is cast upon them by law, and there it will remain until probate of the will, when first the devisees will have the only evidence admissible to show their title. Mr. Pomeroy, in his work on Equity Jurisprudence, volume 3, section 1158, says: “The doctrine seems to be general, if not universal, throughout the states that a court of equity will not recognize nor act upon a will of land or of personalty until it has been admitted to probate.” The author shows why the contrary doctrine formerly prevailed in England, and why it no longer prevails there. And in Schouler’s Executors and Administrators, section 58, this language is used: “In general the necessity for a probate is fully sustained by modern practice in England and in this country, .... and neither the temporal courts in England, nor the courts of law and equity in the United States, will take cognizance of the testamentary papers, or of the rights dependent on them, until after their proper probate. ’ ’ In our own state it has been held that a foreign executor- cannot maintain an action of ejectment to recover land in this state without first taking out letters testamentary here, and that though the will had been probated here. Sims v. Hodges, 65 Miss., 211. And in Fotheree
The appellant could not have defended the two actions at law, whose prosecution he enjoined, because he could not have offered in evidence the will under which alone he claims title, nor can they maintain their injunction against the prosecution of these suits, for the same reason, viz.: until the will shall have been properly probated they have no evidence of title which will give them standing in a court of equity. Plainly, as a bill purely for the probate of the will of Mrs. Bidwell nothing is shown by which any necessity exists for a second proceeding in the same court to effect the same end.
The issue devisavit vel non on the petition presented in the former proceedings for probate of this will yet remains in the court and should be proceeded with. That proceeding was the proper one for testing the validity of the will, and appellees should not be harassed by a second and unnecessary.suit.
Affirmed.
