White v. Greenway
| Decision Date | 05 June 1924 |
| Docket Number | 24027 |
| Citation | 263 S.W. 104,303 Mo. 691 |
| Parties | SUSAN McD. WHITE v. JOHN C. GREENWAY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.
Affirmed.
McCune Caldwell & Downing for appellants.
(1) The writing offered in evidence having been admitted to probate in Kentucky where the testator was domiciled at the time of her death must be admitted to probate in any county in this State where real estate is affected thereby, under the provisions of Section 540, Revised Statutes 1919, upon presentation of the will so admitted to probate by the Kentucky court, together with the order admitting the same to probate, certified according to the Act of Congress. (2) The construction of Section 540 herein contended for is in harmony with the legislation in this State with reference to the admission to probate of wills executed in accordance with the laws of other states or territories. Schulenberg v Campbell, 14 Mo. 492; 2 R. S. 1825, p. 729, sec. 11. (3) Section 540 provides that a will admitted to probate in another state, with the order admitting the same to probate therein, properly authenticated, shall be admitted to probate in this State in any county where real estate is affected thereby. The judgment of a court of this State admitting a will to probate is a judicial act, binding upon all the world until set aside in the manner provided by law. Section 540, therefore, in providing that the writing in question shall be admitted to probate in this State, requires the probate court to admit the same to probate and to make a finding that such will is the last will and testament of the testator. Such a judgment establishes the validity of the will in Missouri and makes it effective to transfer title to real estate in Missouri. Cohen v. Herbert, 205 Mo. 551; Stephens v. Oliver, 200 Mo. 514. (4) The construction thus sought to be placed upon Section 540 is in harmony with the decisions from courts of other states construing similar statutes. Alexander's Commentaries on Wills, sec. 281; In re Gertsen, 127 Wis. 602; Lyon v. Ogden, 85 Me. 374; Green v. Alden, 92 Me. 177; Appeal of Murdock, 81 Conn. 681; Estate of Clark, 148 Cal. 118; State v. District Court, 34 Mont. 96; Amrine v. Hamer, 240 Ill. 572; Martin v. Martin, 70 Neb. 207; Barnes v. Brownlee, 97 Kan. 517.
John D. Wendorff and David Irvine for respondent.
(1) It is admitted by proponents that said writing does not affect real estate in Missouri unless it can be made to do so by Sec. 540, R. S. 1919, and it is conceded that said section does not contain any provisions which in express terms makes said writing "affect real estate" in Missouri as a will, and that said writing can only be made to "affect real estate" in Missouri by the court interpolating into Section 540, in construing it, such provisions and giving them such effect as would make any writing, regardless of how it is executed or whether executed at all, "affect real estate" in Missouri. To so construe said Section 540 would be to repeal Secs. 253, 505, 506, 507, 535, R. S. 1919. (2) This alleged will is not entitled to probate in Missouri for the reason that it was not executed according to the laws of Missouri, and therefore real estate in Missouri is not affected by said alleged will. Secs. 506, 507, 253, R. S. 1919; Dobschutz v. Dobschutz, 213 S.W. 844; Bell v. Smith, 271 Mo. 619; Hughes v. Winkleman, 243 Mo. 81, 92; Keith v. Johnson, 97 Mo. 228; Lindsay v. Shauer, 236 S.W. 324; Nook v. Zuck, 233 S.W. 233.
This suit is brought to contest the will of Elizabeth S. Irvine who died in Madison County, Kentucky, November 25, 1920. The plaintiff is one of the heirs of the deceased, and the defendants are legatees and executors of her alleged last will.
Elizabeth S. Irvine, at the time of her death, owned certain real estate in Kansas City, Missouri, the bulk of which was left by her to endow a certain hospital in Kentucky, for which she provided in her will.
The will was holographic, without witnesses, and signed by the testatrix. It was admitted to probate in Madison County, Kentucky, and appears to have been a valid will according to the laws of Kentucky.
The trial court held the paper was not the will of Elizabeth S. Irvine. The defendants appealed.
I. The rule is universal that title to land can be acquired only according to lex rei sitae, and a will by a non-resident testator devising land in this State must take effect and be interpreted according to the laws of this State. [Keith v. Keith, 97 Mo. 223; Hughes v. Winkleman, 243 Mo. l. c. 92; Dobschutz v. Dobschutz, 279 Mo. l. c. 123.]
The will under consideration might be sufficient to pass title to personal property situate here, and yet not be valid as affecting real estate in Missouri. [Sec. 253, R. S. 1919.] In such case the contest would naturally fail. However, this suit was tried on the theory that if the will is ineffective so far as the real estate is concerned it is no will. The appellant states that the sole question in determining the validity of the will is whether it is sufficient to pass the title to the real estate in Jackson County. So the question of will or no will in the case, as tried and as presented here, turns upon the question of whether it transfers title to real estate in Missouri.
II. The statutes of this State affecting the question under consideration which are inserted for convenience in their numerical order as they appear in Revised Statutes 1919, are as follows:
Section 505 provides that every male person over twenty-one years of age may by last will devise his real estate and personal property.
Section 506 provides that any woman married or unmarried of eighteen years or upward may devise her land, etc.
Section 507 is as follows:
The section then provides for the admission in evidence of the records and certified copies of such will.
In addition to those sections, Sections 518, 520, 521, 522, 523 and 524, provide the methods of attesting and approving a will.
Under Section 507, every will must be in writing, signed by the testator, or by some person by his direction, and must be attested by two or more competent witnesses. The will in question had no subscribing witnesses, and though valid according to the law of Kentucky, it is not valid in Missouri for the purpose of devising real estate unless some one of the sections above quoted authorize it.
It will be noted that Section 253 provides that real estate in this State may be disposed of by a last will of an inhabitant of another state or country, if the will is executed "according to the laws of this State;" personal property may be passed if the will be executed "according to the laws of his domicile."
Section 537 permits a person owning real or personal estate in this State to devise the same by a last will executed according to the law of the state or territory in which the will shall be probated. Under Section 253, such wills would have to be probated de novo in this State. Section 537 thus supplies an omission in Section 253.
Appellant claims that Section 540 modifies the effect of those sections. It provides that a will admitted to probate in any other state or territory, properly certified according to the act of Congress, "shall be admitted to probate in this State in any county where real estate is affected thereby, or filed in the office of the recorder of deeds of said county."
Section 540 was enacted in 1919, after the other sections quoted had been in effect, and does not expressly repeal any part of them. All these sections quoted appearing in the last revision must be construed together so as to give effect to all of them if it can be done without going contrary to the manifest intention of the Legislature. Is it possible to reconcile them? Sections 253 and 537 expressly require a will to be executed according to the law of this State before it is effective to pass real estate. The question is whether Section 540 may be harmonized with them, or whether by implication it repeals so much of Sections 253 and 537 as makes that requirement.
A repeal occurs by implication only when necessity demands it. [State ex rel. v. Wells, 210 Mo. l. c. 620; Manker v. Faulhaber, 94 Mo. 440; 26 Cyc. pp 1073-1077...
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