53 Ala. 1 | Ala. | 1875
The appellees William M. Mathews,
The cause has been argued here, on several questions, into an examination of which we do not enter, because the judgment we feel compelled to pronounce, proceeds upon a single point, and in no event can affect these questions, or prejudice the just claims of the complainants.
The common law committed exclusive jurisdiction over wills of personal estate, to the ecclesiastical courts; and before any testamentary paper of personalty could ho admitted in evidence, probate of it in those courts was indispensable. The law of this State confers on the courts of probate original and exclusive jurisdiction, not only of the probate of wills of personalty, but of realty, and the only evidence of the existence of such will, which can be received in any other forum, is the sentence of that court, declaring its authenticity and validity. In Shepherd v. Nabors, 6 Ala. 637, an instrument was executed in Tennessee, which was declared a will, and not a deed. Probate of it had not been taken, and as was stated by the court, the question presented was, whether the legatee of personal property could recover it at law, until the will had been admitted to probate in the proper forum. Quoting approvingly the declaration of Lord Kenyon, in Rex v. Inhabitants of Nethersal, 4 T. R. 258, “we cannot receive any other evidence of their being a will in this case, than such as would be sufficient in all other cases, where titles are derived under a will; and nothing but the probate or letters of administration with the will annexed, are legal evidence of the will in all cases of personalty,” held, that nothing could be taken under the instrument until it had
The complainants in the court below were in effect suing to recover legacies. Then as legatees, directly, or derivatively, under the will of an heir and distributee of Richard Morton, deceased, they had no claim, or right to, or interest in his estate. The share of his deceased heir, is transmissable to them, only under testamentary papers. When it reached them it satisfies and extinguishes only their claims as legatees. In the absence of the wills, there would not be the slightest foundation for their suit. The wills are indispensable muniments of their title. Of these wills probate must be had before any court can receive them in evidence. If they were received without probate, other tribunals would be compelled to invade the province of the courts of probate — to exercise the exclusive jurisdiction conferred on them — and inquire into the character of the instrument, the capacity of the testator, the mode and sufficiency-of its execution, and all the questions a probate settles and concludes. To avoid this, the temporal courts in England, and the courts of law and equity in this country, do not take cognizance of testamentary papers, or of rights dependent on them, until after probate. Armstrong v. Lear, 12 Wheat. 169; Bond v. Graham, 1 Hare (23 Eng. Ch.) 484; Price v. Dewhurst, 4 Myl. & Cr. (18 Eng. Ch.) 75; Campbell v. Sheldon, 13 Pick. 8; Kerr v Moon, 9 Wheat. 565.
It may be, and probably is true, that the wills under which the complainants claim have been duly admitted to probate, in the proper forum, of the domicil of the several testators. It may also be true, that under the statute, (R. C. § 1949) probate of them could be taken here, as a matter of coui’se, on the production of authenticated copies of the wills
We are constrained to declare that the complainants, as the case is presented by the record, had not any right to maintain suit for the recovery of the share of Mary B. Smoot, deceased, in the estate of Richard Morton, deceased. The decree of the Chancellor is reversed, and a decree here rendered disznissing the bills, but without prejudice to any suit the complainants may izistitute after probate of the wills under which they claim.