Marx v. Loeb

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 407.
• Citation: 153 So. 266,228 Ala. 196
• Parties: MARX et al. v. LOEB.
• Court: Alabama Supreme Court

153 So. 266

228 Ala. 196

MARX et al. v. LOEB.

6 Div. 407.

Supreme Court of Alabama

March 8, 1934

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by Dina Loeb against V. Hugo Marx and others. From a decree overruling a demurrer to the bill, respondents appeal.

Reversed and the cause remanded.

H. H Grooms and Coleman, Spain, Stewart & Davies, all of Birmingham, for appellants.

Martin Turner & McWhorter, of Birmingham, and Inge, Stallworth &amp Inge, of Mobile, for appellee.

GARDNER Justice.

The averments of the bill are properly to be construed as disclosing that complainant in effect here seeks the recovery of a legacy left to her under the will of Johanna Gross, admitted to probate in Germany, the home of both complainant and the testatrix, but not so probated in the state of Alabama, the situs of the property, or any state or territory under the dominion of the United States.

The demurrer takes the point that the probate of the will in Germany is ineffectual to show a right or title to the personalty, and to that end its probate here was essential. Under the decisions of this court the point is well taken.

It is, of course, well established that courts of equity have no jurisdiction to probate or establish wills, a matter resting exclusively in the jurisdiction of the probate court ( Wachter v. Davis, 215 Ala. 659, 111 So. 917; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885), and that any rights thereunder cannot be asserted or recognized until the will has been admitted to probate in the proper forum. Trawick v. Davis, 85 Ala. 346, 5 So. 83; Jordan v. Jordan's Adm'r, 65 Ala. 301; Gilbert v. Partain, 222 Ala. 459, 133 So. 2. The proper forum for this purpose is the probate court, and express provision is made in our statute for probating a will which has been admitted to probate elsewhere than in the United States. Section 10620, Code 1923. The recent amendment of this statute (Gen. Acts 1931, p. 162) is much more restrictive of this right, and having been enacted long after the probate of the will in Germany, and the vesting of complainant's interest thereunder, is not to be considered as of any influence in the instant case. Hoffman v. Hoffman, 26 Ala. 535; Powell's Distributees v. Powell's Legatees, 30 Ala. 697.

But the question here presented was determined by this court as far back as Moore v. Lewis, 21 Ala. 580. There the bill was to recover a legacy bequeathed to complainant's intestate by his son who resided and died in Cuba, and we may add, at a time when that country was a part of the Spanish Dominion. The will was duly proven in Cuba, but never admitted to probate in this state or in any of the United States. The court said:

"The rule is, that a suit cannot be maintained for a legacy until the will has been admitted to probate, Kerr v. Moon, 9 Wheat. 565, 6 L.Ed. 161; Shepherd v. Nabors, 6 Ala. 631; and as sentences of foreign courts do not operate, except as evidence, beyond the limits of their jurisdiction, the proof or probate of the will in Cuba conferred no authority to proceed upon it as a will in this State, although it might be evidence upon which to have it admitted to probate here.

"The title of the plaintiff in error to the legacy depended upon the will, and until he had established it as such, according to the laws of this State, he could assert no right under it in the courts of this State."

In Wood v. Mathews, 53 Ala. 1, the case of Moore v. Lewis, supra, is cited with approval, and in the discussion of a similar question the opinion proceeds:

"In the absence of the wills, there would not be the slightest foundation for their suit. * * * 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. * * *

"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

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