Martin v. Stovall

• Decision Date: 27 May 1899
• Parties: MARTIN et al. v. STOVALL.
• Court: Tennessee Supreme Court

52 S.W. 296

103 Tenn. 1

MARTIN et al. v. STOVALL.

Supreme Court of Tennessee.

May 27, 1899

Appeal from probate court, Shelby county; J. S. Galloway, Judge.

Petition by Hugh Martin and others against William H. Stovall executor, to contest the will of deceased. Petition dismissed, and petitioners appeal. Affirmed.

Pierson & Ewing, for appellants.

J. M Gregory, for appellee.

McFARLAND Special Judge.

This case involves the question whether a will executed and probated in another state, where the testatrix was domiciled and afterwards certified under the act of congress, and filed and recorded in this state, is subject to the contest here under our statute. Mrs. Ferreba A. Hill died during the month of August, 1898, in Coahoma county, Miss., where she was domiciled, leaving what purported to be a last will and testament, which was duly probated in common form as such on the 22d day of August, 1898, in the chancery court of Coahoma county, Miss. The defendant, William H. Stovall, was named as the executor of said will, and on September 7, 1898, he filed the same in the probate court of Shelby county, Tenn., for record, and the same was ordered filed, and letters of administration were by said court ordered to be issued to him as executor. On October 19, 1898, Hugh Martin and wife, Sallie C. Martin, R. J. Cook, a minor, suing by his next friend, Hugh Martin, Paul Cook, Walter Cotter, and his wife, Mary Cotter, filed their original petition in said probate court of Shelby county, Tenn., in which they set out the facts hereinbefore stated in reference to the alleged will of Mrs. Ferreba A. Hill, and further stated that they were the only heirs at law and distributees of the said Mrs. Hill, and, as such, entitled, in the absence of a will, to the whole of her estate, under the laws of the states of Tennessee and Mississippi. It further alleged that the paper purporting to be the last will and testament as aforesaid was not valid, because Mrs. Hill, at the time of the alleged execution thereof, was insane, and, by reason of said insanity, incapable of making a will, and that she was unduly influenced to make said will by the said William H. Stovall, who is named as executor therein, and by Mary Ann Sparks and her husband, J. H. Sparks, acting in collusion with said William H. Stovall. The petition prayed that the said paper alleged to be the last will and testament of Mrs. Hill be certified, as by law provided, to the circuit court of Shelby county, where the same might be contested as the law directs. William H. Stovall, the executor named in said will, appeared by his attorney, and moved to dismiss the said petition, assigning as the ground thereof, stated in various forms, that it was not shown in said petition that the alleged testatrix died seised and possessed of any real estate in the state of Tennessee, and that the probate of the will in the place of the domicile of the testatrix was valid, binding, and conclusive upon all parties until set aside in the court where the original probate was had. Thereupon the original petitioners, having obtained leave of the court, on December 20, 1898, filed their amended petition, wherein they repeat the allegations of the original petition; and further set forth that the said Mrs. Ferreba A. Hill, at the time of her death, was the owner of mortgages upon real estate situated in Shelby county, Tenn., for the sum of $5,000, said mortgages having been originally made to her husband, James S. Hill, and having been devised by him to his said widow, and that by her said alleged will Mrs. Hill attempted to dispose of the said mortgages and the title to the said real estate. The executor moved to dismiss the amended petition upon the same ground as that for dismissing the original petition, and upon the additional ground that, said will of Mrs. Hill having been probated in the chancery court of Coahoma county, Miss., the place of the domicile of the testatrix, said action of the court in so admitting said will to probate was final and conclusive, under section I of article 4 of the constitution of the United States, which declares that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." The court dismissed the original and amended petitions at the cost of the petitioners, and denied to said petitioners any relief. Said petitioners have sued out a writ of error from this court to said probate court of Shelby county, Tenn., to review and reverse the said decree of the probate court of Shelby county dismissing their petition.

The first question presented by the contention of the executor is that the action of the chancery court of Coahoma county, Miss., was final and conclusive, under section 1, art. 4, of the constitution of the United States, which decrees that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." It is submitted, in support of this contention, that the constitution of the state of Mississippi gives the chancery court jurisdiction of all matters testamentary and of administration, under section 159, Const. Miss.; that section 482 of the Annotated Code of Mississippi carries that constitutional provision into effect; and that, by section 1813 of the Code of Mississippi, wills shall be probated in, and letters testamentary granted by, the chancery court of the county in which the testator had fixed his place of residence. In the construction of these sections of the Code, it has been held that a probate of will is the exercise of a judicial power, and the testament cannot be admitted of record until probated. Fotheree v. Lawrence, 30 Miss. 416. Section 1821, Code Miss. 1892, provides that all parties interested may be made parties, and those made parties are concluded. Section 1822 gives two years to contest probate, and, if not contested within that time, it is conclusive. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893. Section 1824: "If after probate an issue of devisavit is made on trial the probate is good." In the probate of a will in Mississippi, some direct proof that the testator was of sound and disposing mind must be given on the probate of a will, even in common form. Martin v. Perkins, 56 Miss. 204. Where a writing has been probated in common form as a will, it must be treated as the established will of deceased, and in full force and effect, until overthrown in a direct proceeding. Tucker v. Whitehead, 58 Miss. 762. It is also held that, where a chancery court is given special jurisdiction, as in probate proceedings, the manner of exercising this jurisdiction does not affect its conclusiveness. 1 Pom. Eq. Jur. pt. 1, c. 1.

It would seem, therefore, that, under these constitutional and Code provisions, the admission to probate of a will in Mississippi is the exercise of a judicial power, and its judgment thereon conclusive in Mississippi as to all matters properly cognizant in the probate proceedings, and as against all parties properly before the court in the proceedings, and also, as a proceeding in rem, conclusive as to the property covered by the will itself. The question, then, is, when this will is offered and probated in the state of Tennessee, and the personal property actually and constructively in Mississippi, what effect shall be given to this judicial proceeding in the state of Mississippi? The transmission of property by will is in many important particulars different from the transmission of title by deed or other proceedings. The power to dispose of property by will, says Judge Gray in Bettun v. Fox, 100 Mass. 234, is not a natural nor constitutional right, but depends wholly upon the statute, and may be conferred, taken away, or limited and regulated, in whole or in part, by legislature; "and whatever theory we adopt," says the American edition of Jarman on Wills, "as to the origin of wills, and the law that governs them, they have become, as regards their construction, largely the creatures of statutory law." 3 Jarm. Wills, 721. What law governs where there is a conflict of laws, as between the statutory provisions of the several states, is the prime question always to be determined. As to the testamentary capacity and form and manner of execution, in case of personalty, the law of the testator's domicile governs. Story, Confl. Laws, §§ 51, 61, 465; Whart. Confl. Laws, § 569; Rob. Wills, p. 525; Jac. Dom. § 45. As to real property, it is claimed by many that the same rule applies, under the civil law, as to personalty, but by the common law it is governed by the lex loci rei sitæ. Story, Confl. Laws, § 431; Whart. Confl. Laws, § 469. This court in the case of Williams v. Saunders, 5 Cold. 60, which will be referred to hereafter, says: "It may be therefore said, as a rule of law alike applicable in this country and in England, that the lex rei sitæ governs in cases of immovable or real property, and the lex domicilii in cases of movable or personal property." The reason for this rule seems to be that, as to personal property, it follows the person of the owner wherever situated,--is to be governed by the laws of the domicile of the owner; and this rule applies to all questions of disposition by will as well as other means of disposition. Again, probate proceedings "are proceedings in rem," and the judgments bind all persons, whether parties in the record or not. Patton v. Allison, 7 Humph. 328; St. John's Lodge v. Callender, 26 N.C. 335; Sawyer v. Dozier's Heirs, 27 N.C. 97; Enloe v. Sherrill, 28 N.C. 212. In Pinson v. Ivey, 1 Yerg. 349, this court says: "Proceedings are had in the nature of proceedings in rem, and without notice, in courts admitting wills to probate and granting administration,...