| Ark. | Jun 21, 1920
This is an appeal from a judgment of the circuit court of Benton County dismissing appellant’s appeal to that court from a judgment of the Benton County Probate Court admitting the last will and testament of Thomas Bobertson, deceased, to probate in common form.
In December, 1916, deceased became a resident and citizen of Sulphur Springs, Arkansas. For more than 25 years prior to that time, he had resided in Griggs County, North Dakota. In December, 1917, he married appellant at Sulphur Springs. He owned an estate of the approximate value of $50,000, about one-half of which was situated in this State and the other half in the State of North Dakota. The estate consisted of both real and personal property. While temporarily at Mound Valley, Kansas, taking medical treatment for cancer, he executed a will in which he bequeathed a small portion of the property in Arkansas to his wife, appellant herein, and the residue of his estate to appellees, William Robertson, a brother, and Ruby Tower and Mary Cohun, nieces. He died on June 27, 1919, leaving him surviving appellant, who is his widow, and appellees, his collateral heirs. He left no children, father or mother, surviving him. On the 28th day of July, 1919, appellees presented the last will and testament of deceased to the probate court without citation to appellant, which will was admitted to probate in common form. On October 4, 1919, appellant filed her renunciation of the will and her election to take under the law. On the same day, she made herself a party to the probate proceedings and took an appeal to the circuit court, from the judgment admitting the will to probate by filing an affidavit for appeal, in which she set up that the will was induced through undue influence by appellees, and, at the time of the execution thereof, the testator was mentally incapacitated to execute a will. In the circuit court appellees filed a demurrer to appellant’s affidavit for appeal and a motion to dismiss the appeal upon the ground that appellant, the widow of the deceased, had no right to contest the will in this State. The circuit court sustained the demurrer and granted the motion to dismiss, and the judgment of dismissal is challenged by this appeal. The question of whether a widow can contest the last will and testament of her deceased husband in this State is settled in the negative by statute. Section 2712 of Kirby’s Digest is as follows: "In cases of provision made by will for widows, in lieu of dower, such widow shall have her election to accept the same or be endowed of the lands and personal property of which her husband died seized.” Under this section, the widow, by renunciation of the will, would reap the same benefit as to real estate located in this State and personal property wherever situate, as if she successfully contested the will. Jameson v. Jameson, 117 Ark. 142" date_filed="1915-02-15" court="Ark." case_name="Jameson v. Jameson">117 Ark. 142. Having renounced under the will, she is no longer an interested or aggrieved party with reference to real estate situated in this State and personal property wherever situate. The construction placed upon this statute is supported by the following authorities: In re Fallon (Ia.), 77 N.W. 575" date_filed="1898-12-17" court="Iowa" case_name="Murphy v. Fallon">77 N. W. 575; In re Smith (Ia.), 146 N.W. 836" date_filed="1914-04-14" court="Iowa" case_name="In re Estate of Smith">146 N. W. 836; McMasters v. Blair, 29 Pa. St. 298; McMechen v. McMechen, 17 W. Va. 683" date_filed="1881-04-30" court="W. Va." case_name="McMechen v. McMechen">17 W. Va. 683; Thompson v. Thompson (Ky.), 121 S.W. 641" date_filed="1907-10-13" court="Ky. Ct. App." case_name="Thompson v. Thompson">121 S. W. 641.
It is insisted, because lands situated in North Dakota are devised to collateral kindred, which, but for the will, appellant would inherit, that she is an interested or aggrieved party and has a right to contest the will in the State of Arkansas. The right to contest a will is not an inherent or constitutional right. Such a right is purely statutory, and does not exist independently of statutory authority. No such authority is given the widow of a deceased testator in this State. In the statute cited above, no exception was made permitting a widow to contest the will in case it devised property situated in another State. The laws of each State govern with reference to descent, tenure and transfer of real estate situated therein. In reference to real estate, a local statute has no extra-territorial force. It was said in the case of DeVaughan v. Hutchinson, 165 U.S. 566" date_filed="1897-03-01" court="SCOTUS" case_name="De Vaughn v. Hutchinson">165 U. S. 566, that “ It is a principle firmly established that to the law of the State in which the land is situated we must look for the rules which govern its descent, alienation and transfer and for the effect and construction of wills and other conveyances.” In support of the doctrine thus announced, see Apperson v. Bolton, 29 Ark. 418" date_filed="1874-11-15" court="Ark." case_name="Apperson v. Bolton">29 Ark. 418; Williams v. Nichols, 47 Ark. 254" date_filed="1886-05-15" court="Ark." case_name="Williams v. Nichol">47 Ark. 254; Varner v. Bevil, 17 Ala. 286" date_filed="1850-01-15" court="Ala." case_name="Varner v. Bevil">17 Ala. 286; Van Steenwyck v. Washburn (Wis.), 17 N.W. 289" date_filed="1884-02-06" court="Wis." case_name="Van Steenwyck v. Washburn">17 N. W. 289; Carpenter v. Bell (Tenn.), 34 S.W. 209" date_filed="1896-02-26" court="Tenn." case_name="Carpenter v. Bell">34 S. W. 209; Clarke v. Clarke, 178 U.S. 186" date_filed="1900-05-21" court="SCOTUS" case_name="Clarke v. Clarke">178 U. S. 186; 14 Cyc. 21; Hines v. Hines (Mo.), 147 SW. 774. The question therefore of the validity or the invalidity of the will in question, as it affects the North Dakota land, must be governed by the North Dakota law. It is an open question in North Dakota as to whether a foreign will may be contested when presented for probate in that State. The only remedy, if any available to appellant in relation to real estate situated in North Dakota and devised by the will, must he found in the laws of that State.
No error appearing, the decree is affirmed.