The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-02


according to the law rel sta, which alone
can prescribe the mode in which title to
such property or any right or interest
therein may pass and will made and
admitted to probate in foreign State, or
III one of the States of this confederacy, is
not sufficient to pass title to landin anoth-
er State where it is situate, unless the will
be admitted to probate in the latter iuris-
diction according to its laws. Mccormick
vs.. Sulliyant, 10 Wheat 202; United States
vs.. Crosby. Craneh lI5 Kerr VS.. Moore,
9 Wheat 365; Carmichal vs. Elmindorf, 4
Bibb Ash; Corneiison ys. Browning, TO B.
Munroe, 428. This rule is not affected
by the proyis ons of the act OF Congress-
| of 70 May, 100, tEaG the records and iu-
dicial proceedings of the Courts of any
State, shall be proved or admitted in any
other Court within the United States, &C.,
and that said records and judicial
proceedings, authenticated as aforesaid,
shall have such faith and credit given to
them in every court within the United
States, as they have by law or usage in the
Courts of the States from whence said re-
cords are or shall be taken" Under this
act, the record of Judgment in one of
| the States is entitled only to such credit,
validity and effect in another State, as it
| has in the State where it was rendered.
| But as will dispOsing ofreal estate is only
etfectual for that purpose when made ac-
| cording to the law OF the State where the
| land is situate, and its operation is entire
| ly local, probate in another State could
| give it no credit or validity there as to such
land, and consequently, under the provis-
| ions of the act of Congress, it could give
| it none in the State where the land lay
! Accordingly, cases are numerous where
| probates of this character have been held
| insufficient to establish the will in another
! State where the land was situSte, so as to
| pass the title Barnes VS.. Brashear, , b.
| Munroe $50: Warner VS.. Bird, II Ala. 300.
| Considering how well recognized the rule
| has always been that the title to lands can
only be conveyed according to the law of
the State where they are situate, il is not
! to be supposed that it was the intention of
the act of Congress to give to another
State, presumed to be unacquainted with
the laws of the State where the lands are
! situate, the power to establish a convey
ance and by the judgment of its Courts
render it etfectual to pass the title; for that
would give to a foreign tribunal power to
establish conveyance, and adjudge the /,
title to land in another State, contrary to
0e positive laws of that State. 1t is much
more reasonable to suppose that the act
was intended to apply to judicial proceed
ings affecting rights of personal or tran
STORY character, and this we consider the
| proper construction of it, Hence, the re-
cord of the probate from Alabama, was
not sufficient to establish the will, and it
was properly excluded as evidence.
The next question, arises upon the ex-
clusion of the record of the probate in tho
Probate Court of Lowndes county
There can be no doubt but that a copy
of a will bearing upon its face the requis-
ties Of our laws in order to render it valid
as to real estate, and shown to have been
duly proved and admitted to record in
another State in which the testator had
his domicil, may be admitted to probate in
this State, and may be effectual as to lands
| lying here. Such is the plain effect of our
statute upon the subject. Hutch. Code
G5l, 625; and the like effect has been given
to such probates under similar statutes in
other States. This is held in the cases
above cited from Kentucky and Alabama,
and 10 Wheaton.
But two objections are urged against the
sutiiciency of this probate sThe first is,
that the will appears upon the face of the
authenticated copy from Alabama to have
been proved in that State by but one Of
the subscribing witnesses, thus appearing
on the face Of the will to be three. The
record shows, that the execution proved
the due execution of the will by the oath
of John Elliott, one of the subscribing
witnesses thereto, and of said codicil by
{ the oath of Newton st. John, one of the
subscribing witnesses to the same" and
f that it was thereupon admitted to probate,
&c. This showed sufficient proof of the
, will. When there appears by the face of
the will to have been the requisite num-
Der of subscribing witnesses, the will may
be proved by one if he prove that it was
, duly attested by the others. And if the
2 record state that it was duly proved by
2 one of them and admitted to probate, and
: it does not afhrmatively appear that wit
ness proved only the attestation by him
self and the execution in his presence, it
will be presumed that he testified to every
= fact necessary to due execution. Come
t lison VS.. Browning, 10 B. Munroe, 425,
421, and the cases there cited.
This objection, however, is untenable
1 for another reason. The copy of the will
e was ordered to be admitted to probate
and recorded" in the Probate Court Of
t Lowndes county. That act was clearly
e within the jurisdiction of the Court, and
! it cannot be collaterally impeached, even
if the Court acted enormously in its judg-
+ ment as to the sufficiency of the original
l'iN'dAC III EAAtbetuld' tbIliLlll dNlIll I. fb.
c Nertner 5, How. 1876. 1t stands like any
G other Judgment of Court of competent
y jurisdiction, and can only be declared in
: valid by direct proceeding for that pur-
n pose.
= The other objection is, that the admis-
y sion of the will to probate in this State
was not made until the year 1854, and af-
II ter the date of the deed from theAexecutor
under which the defendant claimed title
y and after the commencement of this suit
~ The codicil of the will under which the
, power to make the deed is claimed is in
~ these words: 81 do hereby declare and
direct, and give full power and authority
,e to my said executors" t" previously named, }
~ ''or the survivor of them, and shall have
y. full power whenever, and from time to
= time, as they may think expedient, and
ii according to their discretion, to bargain,
NJ sell, convey, lease, release or cucumber,
n or otherwise dispose ofin fee, or otherwise,
/. ! all and any of my real estate, wheresoever
If the same may be situate, either for the
~ purposes of paying debts, making divis-
:, | ions or distribution, or when they shall
- | think it beneficial for any purpose to do
50, in which case, the proceeds shall be
n distributed, kept or applied as the proper
!, ty is required to be by my said will, the
% | true intent anu meaning OF THIS COulCll De-
~ ! ing fully to affirm the dispositions of my
- said will, and the better to enable my ex-
- ecutors to carry into effect, and the better
Z to enable them to place the said proper
: " in such situation as may be convenient
. and more beneficial and profitable, and by
\ giving the power to sell and convey lands
!, TO enable them more conveniently to ben
y eft all parties interested in the beouests
n thereof. BY the will. he had previously
- given one fourth of his estate real and per-
y sohal, to his brother, Benjamin Leavens,
: to his sister Susan, one fourth part, and the
d. residue, to his daughter, Mrs. Butler.
,r 1t cannot be doubted that a special po,s-
l. cr to sell the lands was conferred upon the
Ie executors by the oodicil, and that they
j. were capable of exercising it so soon as
e the will was admitted to probate. 1t was
a derived from the will and the probate
re was but evidence of its execution, and not
,e the foundation of the power granted to
a the executors, and this is especially true,
$, for the power conferred was foreign and
10 distinct from the ordinEry office of the
/, executors When the will was probated
10 in Alabama, the power granted had rela-
: ton back to the death of the testator.-
at The grant of letters was merely the ee-
p, Enlistment of the character of the exec
y utors, and operated as a sanction to their
T. exercise of the special power granted to
"a them in their character Gs executors by
+ the will. The power in them was thus
sr complete upon the probate of the. will
y and their undertaking the trust in Ala
t bama; and when the will was admitted To
r. record in this State it was merely for the
~ purpose Of authenticating the evidence
)f 10y which the special power was establish
L. ed, ana of rendering the prior right avail
able here. But it was clearly neither the
,r source nor the foundation Of the power.
le Being the grant Of q power not appertain-
ID ing TO the duties OF an executor in the
ne general administration of the estate. Il
le comes within the rule laid down in the
Of authorities in relation to the general pow
ers of executors in England such pro-
al bate" says Williams, ''is, however. merely
lis | operative cs the authenticated evidence.
n and not at all a. the foundation Of the
ms | executors title; for he derives all his in
le terest from the viii Itself, and the proper
ty OF the deceased vests in him from the
he moment of the testator's death" Hence
MS the probate when produced is said "a
| - 44fNr, to Ak,t r II.