Sneed v. Ewing

• Decision Date: 12 April 1831
• Citation: 28 Ky. 460
• Parties: Sneed v. Ewing and Wife.
• Court: Kentucky Court of Appeals

28 Ky. 460

Sneed v. Ewing and Wife.

Court of Appeals of Kentucky.

April 12, 1831

Testament, Probate of. Lex Domicilli. Foreign Wills. Probate?? Land. Moveables. Implied Revocations of Wills. Slaves Marriage. Issue. Legitimacy.

APPEAL FROM THE JEFFERSON CIRCUIT; HENRY PIRTLE, JUDGE.

Mills and Brown, for appellant.

Crittenden Nicholas and Denny, for appellees.

OPINION

ROBERTSON CHIEF JUSTICE:

Shortly after the judgment was rendered in favor of Sneed, in the action of detinue, just?? decided by this court, Ewing and wife filed a bill in chancery, asserting their right to the same slaves, and to a tract of land in Shelby county, in this state.?? They allege, that, by a paper, purporting to be the will of Robert K. Moore, dated in April, 1806, and proved in Indiana, in 1807, the slave Agnes, and the tract of land in Shelby, were devised to Sneed, and the residue of said Moore's estate, was devised to said Sneed and Thomas Prather, in trust for Catharine Moore, the wife of the testator; that the will was executed when the testator had no child; but, that after its date, Sarah Loyd Moore, the issue of the marriage, was born, and that she and her co-complainant, intermarried in 1823; that she was the only child of Robert K. Moore, and was not mentioned in the will. They, therefore, make Sneed and Catharine Moore defendants and pray for a decree setting aside the will, and for general relief.

Mrs. Moore having failed to answer, the bill was taken for confessed against her.

Sneed, in his answer, insists on the validity of the will, and denies that there was any revocation of it, express or implied; alleging, that the complainant Sarah, was not the legitimate child of Robert K. Moore; because her mother was the wife of John Prince, who was still living.

It appears from the depositions filed in the case, that Robert K. Moore was a resident and citizen of Indiana, but owned property in Kentucky, of which the slave Agnes, whom he had kept in Louisville, and the land in Shelby, constituted part; that, Moore lived on a farm near Jeffersonville, on the Ohio, nearly opposite to Louisville; that, John Prince had been his overseer, and lived with Catharine Prince, whom he recognized as his wife and who was reputed to be his wife; that in the year 1803, the said John Prince abandoned Catharine, and descended the Ohio and Mississippi rivers, declaring that he would never return; that, he never had returned when this suit was tried, but had been seen on the Mississippi, in the year 1809; that, in January, 1806, Robert K. Moore was married in Louisville, to Catharine Prince, according to all the forms and ceremonies prescribed by the law and usage of Kentucky; that, they cohabited in Indiana as husband and wife from the time of the marriage until Moore's death; that, in February, 1807, about two months before his death, his daughter Sarah was born, of whom he appeared to be fond, and who was recognized by him and by others, as his child; that the will was not sealed nor attested, but was admitted to record in the proper court of probate in Indiana, on ex parte proof, that the body of the paper and the signature of Moore's name to it, were both in his hand writing; and in 1825, on the proper authentication, was admitted to record in the office of the clerk of this court, without any other or farther proof.

The circuit court decreed to Ewing and wife, the land in Shelby and the slave Agnes and the children which she had borne after Moore's death.

There was no decree as to any of the estate devised in trust for Mrs. Moore; and, in consequence of an agreement of the parties, there was no decree for the profits or maintenance of the slaves.

Sneed has appealed.

The appellant insists, that the proper parties have not been made; that the circuit court had no jurisdiction; and that the decree is erroneous on the merits. These objections will be examined in the order in which they have thus been presented.

I. Although Ewing is styled administrator in the bill, nevertheless, having associated his wife with him, and evidently relying solely on her right, and that which he derived by his marriage, the chancellor should regard the adjunct to his name as descriptio personae, and decide the case as if it had not been affixed.

Bullit, Prather and Sneed, were nominated executors by the will, but none of them ever qualified. Bullit and Prather had died prior to the institution of this suit, and consequently Sneed and Mrs. Moore, on the one side, and Ewing and wife on the other, were proper, and the only proper parties.

II. If any tribunal in Kentucky, had a right to adjudicate the validity, or effectiveness of the will, as to the property claimed under it in this state, the circuit court of Jefferson had jurisdiction, Sneed and the slaves, all being resident in Jeffereson county.

But the objection made to the jurisdiction, would apply equally to any and every court in this commonwealth. It is, that the probate in Indiana is conclusive, until it shall have been reversed or revoked by the proper tribunal of that state; and, that therefore, no court in Kentucky has power to decree that there has been an implied revocation of the will.

There is a twofold answer to this objection. 1st. The probate was not conclusive in Indiana. 2d. If it were, it is not so here.

1st. The probate was not conclusive in Indiana.

As there is, in this case, no positive proof of what the law on this subject was in Indiana at the date of the probate or since, and as we know judicially what the law of Virginia was, even whilst Indiana was a constituent part of that commonwealth, we must look alone to the common and statute law then in force in Virginia, for maintaining the position now assumed.

Until, since the Norman conquest, county courts in England had testamentary jurisdiction. In the reign of H. III. the ecclesiastical courts had, by gradual encroachments, obtained jurisdiction, which not long afterwards, became, with the exception of a few prerogative courts, exclusive.

Until since the Norman conquest, county courts in England, had testamentary jurisdiction. By the common law, an ex parte probate of a testament, did not finally conclude the rights of all persons interested. By the common law, an ex parte probate of a testament might be disputed for thirty years, or might be revoked, on citation, by the tribunal which granted it.

By the common law, a probate of a will after citation, could not be revoked by the court which granted it, but might be reversed only by appeal; unless, the will had been fraudulently proved or had been revoked.

This jurisdiction was, however, confined to testaments of personal estate. The common mode of proving a will, was summary and ex parte. But such a probate did not finally conclude the rights of all persons interested. It was liable to be disputed for thirty years, or to be revoked on citation, by the tribunal which had granted it; Toller, 56-76, Ba. ab. title Exer's. E. 8. Touchstone, 499. A probate in the more formal and effective mode, after a sufficient citation, could not be revoked by the court which granted it, but might be reversed only by appeal, unless the will had been fraudulently proved, or had been revoked; in either of which cases, the original court itself, had power to vacate the probate; Toll., 74-6.

The common law, except so far as it had been modified by statute, was in force in Virginia when Indiana was a part of her domain. The only statute of Virginia within our knowledge, which had materially modified the common law as to the testamentary jurisdiction, was an act of 1748; Body of Vir. Laws, 167.

That statute, which vested testamentary jurisdiction in the county courts, both as to the personalty and realty, provided that the probate should not be obligatory as to land, unless the heir or heirs had been cited by actual summons, or if unknown, by proclamation. And though it is silent as to any mode of revoking an ex parte probate as to the personalty, we are bound to consider such a probate, under the act 1748, as no more effectual than it was at common law. As the probate of Moore's will in Indiana was ex parte, without contestation or citation, therefore, presuming, as we must do, that the law of Virginia as it was since 1748, was the law of Indiana in 1807 as to probate, we arrive at the conclusion, that, as to the land, the probate of 1807, had no binding efficacy; and that as to the personalty devised, that probate was revocable by the order or decree of the court which granted it, or of some other court of original jurisdiction; and that, consequently, it was not in Indiana, even as far as it could operate, conclusive, " until reversed by a revising court."

By the common law, a probate of a will after citation, might be vacated by the court which granted it, if, the will was fraudulently proved or had been revoked.

As far as it could apply, it could not be tried incidentally, nor disputed collaterally in Indiana or elsewhere, as long as it shall remain unrevoked and unreversed; Ba. ab. Wills, D Toller, 76. But even as to the personalty devised, the probate might have been attacked and revoked by a direct and original proceeding. Whether this procedure must have been in the probate court, or might have been in a court of chancery, it is not material now to inquire. Even, if the probate should be as effectual here as it was in Indiana, which is not the case,) it could not affect the land, and if, as we suppose, the slaves and parties gave an incipient jurisdiction to the circuit court of Jefferson, that jurisdiction can not, for the reasons which have been suggested, be impaired or clogged by the alleged conclusiveness of the probate. Whether, therefore, the court had jurisdiction,...