Selle v. Rapp

• Decision Date: 29 March 1920
• Docket Number: 300
• Citation: 220 S.W. 662,143 Ark. 192
• Parties: SELLE v. RAPP
• Court: Arkansas Supreme Court

220 S.W. 662

143 Ark. 192

SELLE v. RAPP

No. 300

Supreme Court of Arkansas

March 29, 1920

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

John E Miller and C. E. Yingling, for appellants.

1. The court erred in admitting the testimony offered by the proponents of the will. Kirby's Digest, § 8034; 40 Cyc. p. 1294. The will was not executed in accordance with the lex loci rei sitae. Id. 1294; 31 Ark. 180; 64 A 410; 95 Am. Dec. 487; 22 Am. Dec. 321; 15 A. 379; 18 S.E 208; 34 P. 358; 10 S.E. 411. The evidence admitted to establish the will was mere hearsay and not primary evidence. The certified copy of the New Jersey court order of probate and the certified copy of the evidence taken in New Jersey were not properly admitted in evidence as the proof of the will and the manner of proving it is governed solely by the law of the situs. However if all the evidence of proponents had been admitted without objection, yet the testimony of E. Cypert and W. C. Dugan fails to show that either of them subscribed their names as such witnesses at the instance of the testatrix. 31 Ark. 175-180. The proof also fails to show the age of the testatrix when the will was made and there was no proof as to the domicile of the testatrix when the will was made.

2. Under the proof the court erred in refusing to instruct the jury to find for the contestants as the proponents failed to prove by competent testimony that the will was the will of Julia Rapp and that it had been properly executed. See cases supra.

3. The court erred in holding that the question as to whether the paper writing exhibited as the will of Julia Rapp had been adjudicated by the Orphans' Court of New Jersey, and that by reason of that judgment admitting the will to probate contestants were precluded from maintaining this contest. Kirby's Digest, § 8033, The force and effect of this will in Arkansas relative to lands in Arkansas was not in issue before the New Jersey court. The title and disposition of real property by will is exclusively subject to the laws of the situs. 10 Wheat (U.S.) 192; 170 U.S. 283-289; 94 Id. 315-320. See also Story, Conflict of Laws, § 474; Redfield on Wills (3 ed.), p. 398; 31 Ark. 175-180; 97 Mo. 223; 104 Ark. 602. It is the law of Arkansas that makes the foreign probated will of any effect in Arkansas. 31 Ark. 180; 97 Mo. 223; 29 Oh. St. 379. The will must be executed according to the laws of Arkansas. The will in New Jersey was not sufficient to pass title to land in Arkansas. 176 U.S. 35; Kirby's Digest, §§ 8033-4, 8051.

The "full faith and credit" clause of the Constitution is not violated because the judgment of the New Jersey court adjudged only that the will was good to pass title to property in New Jersey. 109 U.S. 608; 146 Id. 657-669; 177 Id. 214; 243 Mo. 480; 40 Cyc. pp. 1374-5.

The case in 104 Ark. 600, does not preclude contestants from contesting the will. 97 Mo. 229; 205 Id. 537; 243 Id. 480-493. See also 15 A. 376; 11 Cush. (Mass.) 519; 148 Ind. 682; 48 N.E. 592. The rule is that when a foreign will devises lands in this State any person interested may contest the will by complying with our statute. 93 N.E. 145; 22 Am. Dec. 41; Schouler on Wills, § 49; 3 Am. & Eng. Enc. Law 630-2-4; 1 Gratt. (Va.) 18; 64 A. 344.

3. The court erred in holding that contestants were precluded in bringing this contest by reason of the judgment of the New Jersey court and in refusing to allow contestants to show that the testatrix was mentally incompetent and under the influence of her husband when she made the will. Kirby's Digest, §§ 8010-11. Aaron Rapp's testimony was contradicted on every point. 170 S.W. 1021.

E. C. Hall and D. H. Frost, of Missouri, also for appellant.

Make the same points supra, and cite many additional authorities. Page on Wills, § 336; 120 Mo. 295; 124 Id. 637; 13 A. & E. Enc. Law, 992; 64 Ark. 349; 124 Mo. 637; 4 Call. 89; 14 A. & E. Eng. Enc. of Ev. 490, etc.

Brundidge & Neelly and Eugene Cypert, for appellee.

1. There are only two questions here, i. e., the residence of Julia Rapp and the sufficiency of the proofs of the foreign probate of the will. 40 Cyc. 1237. It was properly probated as a foreign will. 193 F. 332. Our own court has settled this question here. 104 Ark. 602.

2. There was no error in admitting the authenticated copy of the will and probate of the New Jersey court. Kirby & Castle's Digest § 1072; 104 Ark. 602.

3. The law is settled, the judgment is right and should be affirmed. All the matters sought to be raised have been settled by the court of Julia Rapp's domicile.

HUMPHREYS, J. MCCULLOCH, C. J., dissents.

OPINION

HUMPHREYS, J.

On the 10th day of November, 1905, Julia Rapp executed her last will and testament, bequeathing her entire estate, both real and personal, to her husband, Aaron Rapp, leaving only one dollar, each, to her two sons and daughter. The will was executed in the State of Arkansas. With her husband she afterward removed to, and became a citizen of, the State of New Jersey, where she died on July 27, 1910. On March 17, 1915, a petition for probate of the will was filed by Aaron Rapp with the surrogate of Hunterdon County, New Jersey, which was contested by appellants herein, on the ground of incapacity of the testatrix to make a valid will. On August 7, 1916, after the contest aforesaid, an order was granted and entered in the county orphans' court, admitting said will to probate. On the 10th day of April, 1917, a duly certified copy of the will was filed by the executor, Aaron Rapp, in the probate court of White County, Arkansas, where it was, by the court, on said date, admitted to probate in the common form and ordered and entered of record. Within one year thereafter, towit, on April 8, 1918, the appellants, two of the children and heirs of Julia Rapp, filed an affidavit for an appeal from the order admitting the will to probate and a petition contesting the will, upon the grounds of incapacity to make and the undue influence of her husband, Aaron Rapp, in procuring the execution of the will. On said date, it being a day of the regular term of the White Probate Court, after hearing, an appeal was granted, and the proceedings certified to the White Circuit Court.

On August 5, 1919, a day of the regular July term, 1919, of the White Circuit Court, the cause was submitted to a jury, upon the pleadings and evidence adduced.

The proponent, upon whom the burden rested, over the objection and proper exception of the contestants, introduced a certified copy of the proceedings in probate in the Hunterdon Orphans' Court of New Jersey, consisting of the citation, the order appointing the commission to take the evidence of the subscribing witnesses to the will, the will, the depositions of the subscribing witnesses, the affidavit of Aaron Rapp, the order granting probate and the letters testamentary issued to Aaron Rapp, pursuant thereto, and the order of the White County Court admitting the will to probate therein in common form.

The contestants thereupon offered testimony to establish the incapacity of Julia Rapp at the time she executed the will, and that it was executed through the undue influence of her husband, Aaron Rapp, which evidence was excluded by the court, over the objection and proper exception of the said contestants.

The court, on its own motion, over the objection and proper exception of the appellants, peremptorily instructed the jury to return a verdict for the proponent, which was done. A judgment was rendered upon the verdict, dismissing the contest. From that judgment an appeal has been duly prosecuted to this court.

This cause was submitted and verdict directed upon the theory that a will probated in another State must be admitted to ancillary probate in this State without the right to contest, except for insufficiency of the proofs of foreign probate and nonresidence of the testator in the foreign jurisdiction. The theory upon which the cause was submitted can not be upheld by the "full faith and credit" clause of the Constitution of the United States, in so far as the will related to property in the State of Arkansas, and especially in so far as it related to real estate located in Arkansas. The probate proceedings in New Jersey only related to and affected property devised by the will in that jurisdiction. So far as real estate is concerned, the rule seems to be universal that the disposition thereof in any mode is governed by the laws where situated and not by the laws pertaining to a devise of said real estate in the district where a will devising same is probated. Apperson v. Bolton, 29 Ark. 418; Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908. In the latter case it was said: "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." The effect, therefore, to be given the foreign probate of a will bequeathing and devising property located in this State must be determined by the statutes of this State. The court justified the theory upon which it submitted the case to the jury on its interpretation of section 8033 of Kirby's Digest. The meaning attributed by the circuit court to the section was that an authenticated copy of a will probated in a foreign jurisdiction and the proceedings thereon, after probate in common form in this State, become conclusive evidence in the establishment of a will. That section, in so far as it relates to real estate located in Arkansas, is as follows: "When a will of a nonresident of this State, relative to an estate within this State, has been proved without the same, an authenticated copy thereof, and the certificate...