71 W. Va. 63 | W. Va. | 1912
The conclusion we hare reached on one of the numerous questions argued and presented, in the elaborate briefs of counsel, is comprehensive of all and the only question fairly arising on the record.
That question is, Has a court of equity in this State general jurisdiction, or jurisdiction given by statute, to set aside a will and the probate thereof, for alleged fraud in the procurement thereof, of one domiciled in another state, duly probated there, and subsequently duly admitted to probate in this State on an exemplified copy of the record and judgment of the court of probate in the foreign state, according to the Act of Congress, as a will of real and personal estate, as provided by section 25, chapter 77, Code 1906 ?
By the decree appealed from the court below answered in the affirmative. In so doing we think it erred, and that its decree must be reversed, and the bill dismissed, but without prejudice to appellees as to any other rights they may have, given by the laws of Ohio, or this State, in respect to the will in question.
The will involved is that of Louisa Armstrong, known also as Louisa Butcher, who at the date of the will and at the time of her death and for many years prior, was ■ domiciled in the state of Ohio, and the facts respecting the same are as assumed in the question propounded.
It is conceded that the will, if valid, disposes of real and personal estate in Taylor county, where the ancillary probate was had. And the jurisdiction of the probate court of Ohio pronouncing the judgment of probate there is.not seriously questioned.
We first determine that no statute of this state gives jurisdiction in equity assupied by the court below. Section 25, of chapter 77, Code 1906, our statute of wills, provides; “Where a will relative to estate within this State has been proved without the same, an authenticated copy and the certificate of probate thereof, may be offered for probate in this State. When such copy is so offered, the court to which, or the clerk to whom, it is offered, shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the State or country of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this State; and if it appear from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of land in this State by the law thereof, such copy may be admitted to probate as a will of real estate. But any person interested, may, within five years from the time such authenticated copy is admitted to record, upon reasonable notice to the parties interested, have the order admitting the same set aside, upon due and satisfactory proof that such authenticated copy was not, a true copy of such will, or that the probate of such will has been set aside by the court by Avhich it was admitted to probate, or that such probate was improperly made.”
This is the whole statute relating to ancillary probate andi contest of foreign wills. No jurisdiction in terms is here given a court of equity to annul a foreign will or the ancillary probate-thereof in this State. Nor is notice to interested parties of the-offer to probate required. The judgment of probate of the-County Court of Taylor County, on the exemplified record from-Ohio was that “it appearing from said copy that the said will' was proved in said Probate Court of Monroe County, Ohio, to-have been so executed as to be a valid will of land in this state by the law thereof and there being no objection now made thereto,
In the case of a domestic will, probated under sections 26-28 of said chapter 77, section 29 gives to any person aggrieved right of appeal and to contest the will on an issue devisavit vel non in the circuit court. It is not pretended that the present suit is a proceeding under that section, if applicable to foreign wills; but it is insisted by appellees, contrary to the contention of appellants, that sections 31 and 32 of said chapter are applicable and give equity jurisdiction of the present bill, justifying the decree appealed from. Those sections are as follows: “31. Every such order or sentence of a county couyt not appealed from, and every such order or sentence of a circuit court on such appeal, shall be a bar to a bill in equity to impeach or establish such will, unless on such a ground as would give to a court of equity jurisdiction over other judgments at law.” “32. After sentence or order made as aforesaid, a person interested, who was not a party to the proceeding, may, within five years proceed by bill in equity to impeach or establish the will, on which bill, if required by either party, a trial by a jury shall be ordered, to ascertain whether any, and if any, how much, of what was so offered for probate, be the will of the decedent. If no such bill be filed within that time, the sentence or order shall be forever binding.”
A comprehensive view of the preceding sections, including section 25, we think, clearly indicates that the legislature never intended sections 31 and 32 to apply to foreign wills probated here, el«e why the remedy given by that section against the probate of the will. Without probate here a foreign will is ineffective to pass title, certainly to real estate. Thrasher v. Ballard, 33 W. Va. 285. Section-25 is sui generis. It contemplates a prior judgment in the jurisdiction of the domicile, a judgment in rem, which would involve the question of the val
Many cases are cited by counsel involving contests by bill in equity of wills originally probated in this State; but we are cited to no case, and we have found none, where a court here has entertained jurisdiction to annul a foreign will probated here under said section 25.
It is -said, however, that jurisdiction in equity has been sustained in other states under'statutes similar to or in all respects like our statute. The cases of Sneed v. Ewing, 5 J. J. Marshall, 160, 22 Am. Dec. 46-49; Evansville v. Winsor, 148 Ind. 682, overruling Harris v. Harris, 61 Ind. 117; and Martin v. Stovall, 48 L. R. A. 142; Markwell v. Thorn, 28 Wis. 548; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Allaire v. v. Allaire, 37 N. J. L. 312, and Bowler v. Huston, 39 Grat. 266, 32 Am. Rep. 673, are cited as instances of such holding. In Sneed v. Ewing, the will made and originally probated in Indiana liad not been probated in Kentucky, but simply recorded
But has equity independently of statute general jurisdiction to set aside a foreign will probated here for fraud in its procurement and probate? We think not. True as to land, the law of this state controls its disposition, but section 25 gives force and effect to the will of one domiciled in another state and probated there, 'and when admitted to probate here, as provided, becomes as valid and binding as tire will of one of our own citizens originally probated here; and after probate, out of comity and for the autonomy of administration refers the question of contest to the courts of the testator’s domicile. The argument for general equity jurisdiction is based on the right of the courts of one state to inquire into the jurisdiction of the courts of another state when their judgments are here presented and rights asserted under them; and when obtained by fraud to deny them local efficacy and even avoid them. On the principles of the decisions cited for this proposition, the probate courts of this state may undoubtedly look into the jurisdiction of the foreign court of probate on a motion under our statute to set aside the probate of .a. will here, but the contest of a foreign will is plainly referred to the original court of probate. The remedy there is complete and ample, when as in Ohio the statute provides therefor, and no valid reason can be assigned for not going into the courts of that state for relief. Indeed the record of this case discloses the fact that a suit to avoid the will here involved was at one time begun there. In this case we have not only the judgment of original probate in Ohio, but of our own court admitting the will to' probate here. The authorities cited we think sustain the proposition' of appellants that jurisdiction to set aside a will or the probate thereof, is purely statutory. Norvell v. Lessueur, 33 Grat. 222, holds, first point of the syllabus, that “It is a settled rule of law in Virginia, that the admission of a will to probate generally is conclusive of its validity, both as a will of realty and personalty, which cannot be drawn in question, except oh an issue' devisamt vel non within the time and in the mode prescribed by the statute.” This principle is recognized in Kirby v. Kirby, 84 Va. 627, 5 S. E. 539. It is held in the latter case that in a suit to contest a will
What effect should be given the judgment of probate in Ohio under Art. 4, §1, Const, of the United States, is a question much discussed in the briefs. We do not regard the question very material in the disposition of the case at bar, for the reason that our statute, section 25, chapter 77, gives it all the force of an adjudication, by admitting the will to probate here on an authenticated copy of the record and judgment there. This necessarily comprehends the question there necessarily involved as to the mental capacity of the testator, and by that judgment it was distinctly found that the will in question was the valid last will and testament of the testatrix, that it was" duly executed, and that at the timé of the making thereof she was of sound and disposing mind and memory and not under undue influence, the exact questions now sought to be litigated in this suit. There is much conflict of decision on this question, but it has generallv arisen we think when a foreign will has been presented for probate in another state. See Martin v. Stov-
Our conclusion is, 'without further argumentation or citation of authorities, to reverse the decree below and dismiss the bill, but as indicated without prejudice to any other rights appellees may have.
Reversed and Bill Dismissed.