Williams v. Jones, &C.

• Decision Date: 19 December 1878
• Citation: 77 Ky. 418
• Court: Kentucky Court of Appeals
• Parties: Williams v. Jones, &c.

77 Ky. 418

Williams v. Jones, &c.

Court of Appeals of Kentucky.

December 19, 1878.

APPEAL FROM TRIGG CIRCUIT COURT.

THOS. C. DABNEY FOR APPELLANT.

J. B. GARNETT AND J. H. WILKINSON FOR APPELLEES.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

Jethro Bass, having made and published a last will and testament, died in Stewart County, Tennessee, the place of his residence, prior to September 2, 1850, on which day his will was produced before the county court of that state, and proved and admitted to record, and W. C. Jones and Norflett Bass, nominated executors, qualified as such.

The testator directed certain lands owned by him, situated in Trigg County in this state, to be sold by his executors.

January 10, 1853, a copy of the will, accompanied by a transcript of the proceedings of the probate court in Tennessee, was produced in the Trigg County Court, and the will was there admitted to probate, and W. C. Jones, one of the executors, qualified as such in that court, and sold the land as directed in the will.

The appellant having subsequently gotten into possession of the land, this suit was brought by the heirs of a remote vendee of the executor to recover possession.

On the trial a copy of the will, certified by the clerk of the Trigg County Court, was permitted to be read in evidence, notwithstanding the objections of the appellant, and judgment of eviction having been rendered against him, he prosecutes this appeal.

Section 31 of chapter 106 of the Revised Statutes, in force when the will was admitted to record in Trigg County, reads as follows:

"When a will of a non-resident of this state, relative to estate within this state, has been proved without the same, an authenticated copy thereof, and the certificate of probate thereof, may be offered for probate in this state. When such copy is so offered, the court to which 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 county of the testator's domicil, and shall admit such copy to probate as a will of personalty in this state. And if it appears 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 lands in this state, by the law thereof, such copy may be admitted to probate as a will of real estate."

The simple judgment or order of a foreign court of probate admitting a will to probate is sufficient to authorize an authenticated copy of such will to be admitted to record in this state as a will of personalty. The evidence upon which such judgment or order was based need not appear. In the absence of evidence to the contrary, our courts of probate must presume that the evidence before the foreign court was sufficient.

But, in order to entitle the will to probate here as a will of real estate, it must appear from the foreign transcript not only that the will was admitted to probate in the foreign court, but that the evidence heard there was such that if it were introduced here it would authorize the probating of the will under our laws.

In other words, the effect of the latter clause of the section supra was to authorize the evidence introduced before the foreign court to prove the will, so far as it may appear in the foreign transcript, to be read as if it had been taken in a proceeding here to probate the will, and the evidence required by our statute can not be supplied by any presumption arising from the judgment of probate rendered by the foreign court, nor can the evidence as it appears be strengthened by such judgment. In determining the question whether the will shall be probated as a will of real estate, the foreign judgment must be left entirely out of view.

A proceeding to probate a will is not such as falls within the provisions of section 1 of article 6 of the constitution of the United States, that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

Each state may regulate, for itself, the manner in which real estate...