McPherson v. McKay

• Decision Date: 03 July 1944
• Docket Number: 4-7392
• Citation: 181 S.W.2d 685,207 Ark. 546
• Parties: McPherson, Executor, v. McKay, Administrator
• Court: Arkansas Supreme Court

181 S.W.2d 685

207 Ark. 546

McPherson, Executor, v. McKay, Administrator

No. 4-7392

Supreme Court of Arkansas

July 3, 1944

Appeal from Columbia Chancery Court; Robt. A. Kitchen, Chancellor.

Affirmed.

Ned A. Stewart, for appellant.

McKay & McKay and McReynolds & Flanigan, for appellee.

OPINION

Smith Justice.

Mrs Eleanor M. Hope was a resident of Shreveport, Louisiana, at the time of her death on August 12, 1939. She had previously on September 18, 1936, executed a last will and testament, duly attested, in manner and form provided by the first four paragraphs of § 14512, Pope's Digest. She was the owner of real estate, at the time of her death, in this state, and we held in the case of McPherson v. McKay, 205 Ark. 1135, 172 S.W.2d 911, that this will could be admitted to original probate in this state, without having been probated in the state of her residence. On July 7, 1939, Mrs.

Hope executed a holographic will, with no attesting witnesses. Each of these wills made a complete, but different, disposition of her property. On August 14, 1939, the holographic will was admitted to probate in the state of Louisiana, and an authenticated copy of that proceeding was filed in Columbia county, Arkansas, where the lands of testatrix are located, for probate in this state under § 14534 of Pope's Digest.

The authenticated copy of the proceedings in the probate of the holographic will in Louisiana reflect that the proof of the handwriting of testatrix was made by Minna Binkley and Sterling Stewart, the latter being a beneficiary under the will to whom a three-twentieths interest in the lands of the testatrix was devised. The holographic will named Roy B. McPherson as executor, and it appears from the pleadings praying and opposing the probate of the holographic will that the testatrix owned no property in this state other than the real estate.

The probate of the holographic will was resisted, and denied, upon two grounds: (1) That it was not proved to have been so executed as to be a valid will of lands in this state, and, (2) that it could not be pleaded in bar of the prior will, which had already been admitted to probate, and from that order and judgment is this appeal.

The review of this action requires the consideration and construction of certain sections of the Chapter on Wills, appearing in Pope's Digest. The first of these is the fifth paragraph of § 14512, which reads as follows: "Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of such testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act."

It will be observed that this paragraph requires that the execution of a holographic will be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testatrix. The proof in Louisiana was made, not by three, but by only two, witnesses, and only one of these could be called disinterested, the other being a legatee and beneficiary under the will. This paragraph further provides that no will without the subscribing witnesses for which paragraph four of § 14512 provides, shall be pleaded in bar of a will properly subscribed.

We are not concerned with the effect to be given to the probation of the holographic will in Louisiana upon the property of the testatrix in that state. The question for our decision is what is the will of the testatrix in relation to her property in this state, and that question must be decided in accordance with the laws of this state, and not those of Louisiana. Section 156, Leflar on Conflicts of Laws; § 907, Jones on Arkansas Titles. It was said in the opinion in the case of Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908, that, "the general rule, without any diversity of opinion, is that the alienation, transmission and descent of real estate is governed by the laws of the country or state in which it is situated. (Citing cases)." See, also, Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A. L. R. 494; Robertson v. Robertson, 144 Ark. 556, 223 S.W. 32.

The cause was heard on the petition of the executor named in the holographic will, and the response of the administrator appointed upon the probation of the prior will, and there appears to be no dispute as to the facts, which are, that a will...