Sims v. Hodges

65 Miss. 211 | Miss. | 1887

Arnold, J.,

delivered the opinion of the Court.

The action of the court below, in excluding from the jury the testimony for appellant, and instructing them to find for appellee, is justified by the fact that though an authenticated copy of the will through which appellant claims had been admitted to probate in this State, he had not qualified as executor or taken out letters testamentary here, and was, therefore, not entitled in his executorial capacity, to the possession of the land in controversy.

It cannot be doubted that title to or interest in, land, must be made and acquired according to the lex rei sitae, and that each State or country may prescribe the manner in which title to real estate situate in its jurisdiction, shall pass, and what evidence of the character and authority of a foreign executor shall be sufficient for him either to sell such estate or to recover the same by suit.

The probation of the will in Alabama, and of an authenticated copy thereof afterwards in this State, had only such effect here as allowed by our laws. This was sufficient to have enabled appellant, without qualifying as executor in this State, to execute the special power conferred upon him by the will to sell the land. Crusoe v. Butler 36 Miss., 150; Newton v. Bronson, 13 N. Y., 587. But it was not enough to enable him, as executor, to recover the land in an action of ejectment. It is only executors who have qualified as such in this State, and according to its laws, that are entitled, when necessary to execute the provisions of the will under which they act, to the possession of real estate. j|[Code, Section 1983.

It was necessary, to render appellant capable of maintaining the suit as executor, that an authenticated copy of the will should have been probated in this State, under Section 1916 of the Code, as was done; or that the original will should have been probated here, as domestic wills are required to be probated under the laws^of the State, and that he should, in either case, have taken®out letters testamentary in this State. Code, Section 1918. Section 2091 of the Code, which provides that an executor or administrator who has .qualified in another State or country may sue as such in the courts of this State, or receive and give acquittance for any property of, or debts due to, his testator or intestate, after filing in the office of the clerk of the Chancery Court ofithe count}*, where there may be some person indebted to, or having effects óf the decedent in his hands, a duly certified copy of the record of the appointment and qualification of such executor or administrator, according to the law of the State or country of such executor or administrator, and a certificate of the proper officer of such State or country that such executor or administrator is there liable to account for the thing sued for or received, cannot aid appellant, for it does not apply or have relation to realty.

Affirmed.