Keith v. Keith

• Decision Date: 04 February 1889
• Citation: 10 S.W. 597,97 Mo. 223
• Parties: Keith et al. v. Keith et al., Johnson, Plaintiff in Error
• Court: Missouri Supreme Court

10 S.W. 597

97 Mo. 223

Keith et al. v. Keith et al., Johnson, Plaintiff in Error

Supreme Court of Missouri

February 4, 1889

Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.

Reversed and remanded.

Graves & Aull for plaintiff in error.

(1) The executor's deed was erroneously admitted in evidence. It should have been recorded in this state. (2) The very same (and only the same) faith and credit must be given this alleged will, probate thereof, and executor's deed as would be given thereto in a Kentucky court. Pennoyer v Neff, 95 U.S. 723. That being so, by the law of Kentucky, these documents would not be admitted, because: (a) The Kentucky supreme court decides that a Kentucky executor has no power to act beyond the limits of that state, and cannot appeal to the law of another state for authority. Taylor v. Railroad, 78 Ky. 348; Minor v Cardwell, 37 Mo. 350; McCarty v. Hall, 13 Mo 481; Cabanne v. Skinker, 56 Mo. 367. (b) In order to entitle this will to become evidence of title the proof of the subscribing witnesses should have been embraced in the transcript. Williams v. Jones, 14 Bush, 419. (c) The Kentucky county courts are courts of inferior jurisdiction. Taylor v. Commonwealth, 3 J. J. Marsh. 401. And the Kentucky courts will not take official notice of their proceedings. March v. Commonwealth, 12 B. Mon. 28. (3) The case of Keith v. Keith, 80 Mo. 125, is in direct conflict with Kerr v. Moon, 9 Wheat. 565; Doe v. McFarland, 9 Cranch, 151; U. S. v. Crosby, 7 Cranch, 115; McCormick v. Sullivan, 10 Wheat. 192; Carmichael v. Elmendorf, 4 Bibb (Ky.) 484; Lucas v. Tucker, 17 Ind. 41; 3 Redf. on Wills. (3 Ed.) p. 23, sec. 5; p. 34, sec. 19; p. 35, sec. 20; Abbott's Trial Ev. 109, 110, 144, 159.

Wallace & Chiles for defendants in error.

The court below did not err in admitting in evidence the certified copy of the will of James W. Keith, deceased. Our statute, evidently, contemplates "the probate" of a will made in another state, in the state where made, and the admission of an "authenticated copy" of such will and "the probate" thereof, "in evidence," in this state. R. S. secs. 3992, 3993. (2) In Robartson v. Barbour, 6 Mon. --; Bright v. White, 8 Mo. 421, and Haile v. Hill, 13 Mo. 618, it is held that "the record of the probate of a will" is a judicial proceeding under the act of congress of May 26, 1790, being the act "in relation to the authentication of laws and records." See also, Lewis v. City of St. Louis, 69 Mo. 595; Keith v. Keith, 80 Mo. 125; Bradstreet v. Kinsella, 76 Mo. 63; Gaines v. Fender, 82 Mo. 497. (3) The decision in Keith v. Keith, supra is res adjudicata. Gaines v. Fender, supra; Cresy v. Alverson, 43 Mo. 13. (4) The court did not err in admitting the executor's deed in evidence. R. S. 1855, p. 141, sec. 1; R. S. 1879, sec. 137; Acts 1883, pp. 23, 24; Dilworth v. Rice, 48 Mo. 124; Evans v. Blackiston, 66 Mo. 437. (5) The authorities cited by plaintiff in error do not apply to this case.

Black J. Barclay, J., not sitting.

OPINION

Black, J.

This is a suit between the children and grand-children of James M. Keith for the partition of two hundred and eighty acres of land in Lafayette county. John Johnson is a defendant because of a deed of trust held by him on two hundred and forty acres of the same land.

On the first trial, the court held the deed of trust to be a valid lien on the land. That judgment was reversed on an appeal prosecuted by the parties opposed to Johnson (80 Mo. 125). On the second trial, the circuit court held the deed of trust to be of no validity as against the children and grand-children of James M. Keith. No bond having been given on the first appeal, the property was sold and the proceeds, to the amount of $ 1,782, were applied to the payment of Johnson's debt; and the balance divided among the other parties according to their interests in the land. While the ultimate question now is, whether Johnson shall make restitution, still that question must be determined by a trial of the rights of the parties to the property.

The facts are these: James W. Keith, who was the father of James M. Keith, died a resident of the state of Kentucky, leaving a last will which was probated on the twenty-sixth of May, 1851, in the county court of Clark county, in that state. James M. Keith then resided on the land in suit, but it is admitted that the title was in James W. Keith at the time of his death. The will, after giving a description of the land in suit, disposes of it by the use of these words: "I hereby will and direct that a good and sufficient deed for said land shall be made by my executors to my said son James for and during his life and at his death in fee to his children." The nominated executors declined to act, and the court granting the probate appointed Houston and Downing administrators with the will annexed, who made a deed to James M. Keith, giving him a life estate, remainder to his children; this deed of the foreign administrators bears date May 13, 1858, but was not recorded in Lafayette county until April 17, 1879, and nine or ten days after the death of James M. Keith. The deed was found among his papers after his death. The deed of trust from James M. Keith to Tutt, trustee for Johnson, was executed some two years before the death of James M. Keith and was made to secure money then loaned Keith. The will was never probated in this state, nor was an authenticated copy ever recorded in Lafayette county.

1. The deed from the foreign administrators to James M. Keith is an instrument which comes within the provisions of our recording acts, and should have been recorded. As it was not recorded when Johnson made the loan and took the deed of trust, he cannot be charged with constructive notice of it. It is not shown that he had actual notice. As to him, then, there was no such deed, and it is therefore unnecessary to determine the question whether these foreign executors had or had not the power to make a valid deed to lands in this state. The deed, good or bad, is out of the case so far as the appellant, Johnson, is concerned. But if Johnson is to be charged with constructive notice of the will, then it is immaterial whether he had notice of the deed or not, for the will shows that James M. Keith was to have a life estate only in the land.

The question, then, is whether Johnson is to be charged with constructive notice of this foreign will. Our statute provides that any person owning real property in this state may devise the same by last will, executed and proved according to the laws of this state. Section 3993 enacts: "Authenticated copies of such wills and the probate thereof shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like effect." Section 3994 is in these words: "Any such will may be contested and annulled, within the same time, and in the same manner, as wills executed and proved in this state." Other sections provide that wills proved in this state shall be recorded by the clerk of the probate court in a book to be kept for that purpose. It was not necessary that this will should have been proved anew in Lafayette county, but the will being executed and probated in Kentucky in a manner complying with our law, it was sufficient to record it here, as domestic wills are required to be recorded. It was held in Lewis v. St. Louis, 69 Mo. 595, that a certified copy of a foreign will and its probate could be used and read in evidence in this state for the purpose of showing a transfer of title to land in this state, though not recorded here. That ruling was followed in this case when it was here before, and in the subsequent case of Drake v. Curtis, 88 Mo. 644, and in some intermediate cases. The question of constructive notice from a foreign will, not recorded here, was not considered in any of these cases, but it is presented on this appeal, and determines the appellant's rights in this case.

No principle of law is better established in the United States than this, that the transfer of title to real estate must be in accordance with the law of the state where the property is situate. So a will, to be of any validity as a transfer of title to land, must be executed, attested and probated in the manner prescribed by the law of the state where the land is located. Cabanne v. Skinker, 56 Mo. 357; Story on Conflict of Laws, sec. 474; McCormick v. Sullivant, 23 U.S. 192, 10 Wheat. 192, 6 L.Ed. 300, and cas. cit.; Lucas v. Tucker, 17 Ind. 41; Jarman on Wills, 1; 1 Red. on Wills (3 Ed.) 398; Whart. on Conflict of Laws, sec. 587. It would seem to follow from this general principle that if the laws of this state dispense with proof anew of a foreign will, then such laws must be complied with in order to give the foreign will the force and effect of a proved domestic will, and this is the clear ruling in the case of McCormick v. Sullivant, supra, and it is also the deduction to be drawn from what was said in Cabanne v. Skinker, supra. In McCormick v. Sullivant, supra, the contest was over lands located in Virginia and Ohio. Says the court in that case: "We are all of the opinion that the probate of a will in Pennsylvania cannot be considered as constructive notice to any person of the lands in controversy." The supreme court of Texas uses this language: "We hold, therefore, that the probate of the will in Tennessee, in 1865, was not notice of the contents of it to parties in Texas dealing together in buying and selling the Texas lands." Slaton v. Singleton, 72 Tex. 209, 9 S.W. 876.

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