Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-22

tlfss ~ tfis
Continued
In England the distinction between wills OF
personal property and wills Of real property, has
been constantly maintained. 10 fact. the eccle-
sinstcal courts until recently had no jurisdic-
ti0n whatever, except over wills Of personal es-
tate and the common law courts had cOgniLance
over wills of real estate.
10 may be, therefore. said as a rule Of law
alike applicable in this country and IN England,
that the Ter oci rel % ae governs IN cases Of in-
uiODgbis real property, and the Ter dOmicstio
IN cases Of B0Oabtc or personal property.
In this State our local laws have been some
what variant from the general doctrine. By
the act Of 1909, oh. III, Car. a Mich. IS, an ad-
ministrator OF an executor who had obtained
letters Of administration. OF letters testamenta-
~, in any Of the United States OF territories,
was authorized, upon presenting bis Letters
whether Of administration or testamentary-
authenticated according to the act Of Congress,
90 sue ia his representative capacity. in any
court in this State. in the same manner as II
such letters had been granted by the courts Of
Tennessee.
The act Of 1923. ch. 81, which, as we have
shown, was carried into the Code did not repeal
the act Of 1909 but a. was continued in force and
effect until the passage of the act Of 1870 oh. 49,
Mich. supplement 100. smith ps Maberry. Z
Yer. 26. Allsup Us. Alisup, 10 Yer, 2S3. True,
a foreign executor or administrator could not
be sued IN the courts Of this state, m virtue OF
his foreign letters tostamentaTy or Of admins
tration, but under the act Of 1909 he could su e
aud collect assets, and go hence without ac-
count, unless indeed they might, while IN tran
sifl. be detained in some manner by the domes-
tic creditors.
Now. since the repeal Of the act Of 1909 by the
act OF 1870 what construction IS 20 be given 20
the act of 1923. which is brought forward and in
rorpuruted into the Code at sections 282 10 2lg2
We have no direct adjudication upon this stat
ute involving the precise point raised in this
case Is atoreIgn Will. after probate in the state
whore II was published. when brought here,
open under our laws 70 contestation and repro
hhte2
The answer 10 this question involves the con-
sideratiun Of the effect Of foreign probate, and
especially the effect Of the probate of the will
40 question before the Register Of Wills" in the
Staio of Pennsylvania.
A. q general rule of law the judgment Of a
Probate Court, allowing proof Of q WILL and ad-
mitilug d 90 probate. Is IN the nature Of pro-
ccedinR 20 REM, that ~, an adjudication pro
nounced tas its name imports) upOn the status
Of a particular subject matter by tribunal hay
ing competent authority for that purpose, and
therefore binding and conclusive upon the
rights Of all persons interested in the property
90 be administered, though they are not named
as parties. Redfed on Wills, part 2. PIP. $50,
aud note .. and the numerous authorities there
cited. Also, Crippin as. Dexter. Hays r., 23O.
Smiths leading eases, 400 Patton eN'rs gs.
Allison 81 0i., Z Hume, 800. ! Ter. 3i9.
To have such effect IL is obvious the tribunal
IN which the will was admitted 10 probate, Must
have competent authority. In the case under
consideration. as we have seen, the will was
proven before the Register Of Wills IN the
city aud county of Philadelphia. The Register
of Nills." by the laws of Pennsylvania, is audi
cial officer. and the fifth section ct the act Great
iug the office of Register OF Wills IN the State
OF Pennsylvania. aud defining has powers and
duties, declare that every Register qualified TO
set as aforesaid, shall have Jurisdiction within
the county for which he shall have been ap-
pointed, of the probate of wills and testaments
Of the granting Of letters testamentary and Of
Of the passing and filing the
accounts Of executors, administrators and
suardiauss and Of any other matter whereof
the jurisdiction shall be annexed 30 his said
office. and the act Of any Register, IN any
matter whereof any other Register has the eE-
elusive jurisdiction, shall be void aud Of no et-
feet" Purdon's Digest 705, aud note y. See
also title decedents estates. same book, l5l.
BY the nineteenth section of this act the
Register of Wills, and the Judges of the Court
Of Common Pleas Of any county, or any two of
the sa'd Judges, are authorized TO compromise
and hold, from time 10 time az execution may
require. the Registers Court Of such county,
and when convened according 20 law. such court
lB vested with plenary power and jurisdiction,
10 do and perform all such judicial acts in mat
iers lawfully brought before il as belong to the
othce Of Register of Wills. To this tribunal by
the sixth section Of the act appeals lie from all
judicial acts and decisions Of tho several Regis
tors, prortded, they are pronounced within the
term Of three years.
1 Thus it h. apparent. without drawing more
particularly and at large from the act itself that
the tribunal before which the will in question
was admitted 20 probate, had full power and
AlleAltllNh 10 lukf the lINhlNt OF wills. ana 70
issue letters testamentary thereon. Now what
e the eject Of the Judgment Of probate in the
state OF Pennsylvania, when certified according
10 the act O! Congress IN this State Under our
Statute is Il 10 be diEregarded, and open in the
'ourts Of Tennessee 10 reprobate and Contesta-
lonf We think clearly not. IL is established
1eyend all controversy, both in this country and
IN England. that the jurisdiction Of probate
courts being exclusive In regard 10 all matters
pertaining 60 the settlement of estates Of de-
ceased persons, the decree Of such courts upon
The probate of wills and issuing letters tesla
montary, as well as Of administration. are ahso-
utely uuim" sachable aud conclusive in an other
courts, both in law and equity: and such decree
says Mr.. hidhold on Wills, part p y. A. can
not be impeached oven by showing fraud except
by petition 70 the court rendering the decree
who may amend OF modify the same IL can
not therefore be shown, collaterally that another
person was appointed executor, or that the tos-
'ator wRs insane. or that tho viii was a forgery"
Archer %. Nose, 2 Vernon 5: Plume a. Beale
Z. Williams, 3SS ! Williams EN'rs AZ. See
also 2 Reddeld on Wills, PISS. section 9, and
notes.
II is admitted that the language of section
1le0 Of our Code Is peculiar, bat no fair con-
'truction Of the whole article upon the subject
lt foreign wills admit Of any other reasonable
To hold that this section opens
20 deny 20 the preceding sections Of the same
article all validity. for they provide, as has
already been shown, that where any foreign
sill has been proven according TO the laws of
his State, IN court OF territory of the United
states or before the Mayor Of any city, any per
ION may present n copy thereof, duly authenti-
'atod 60 the County Court Of any county IL this
state, where the land or estate devised or dis
posed Of by will Is situated. and thereupon such
'ourt nay order the same 60 be filed and record
cd and said COPY when So recorded shall have
he same force aud effect as If the original had
been executed in this state, aud proved and
allowed In the courts of this State.
II Is plain that the statute does not cantem-
llate that a foreign will when proven accord
ng 90 the laws of this State, and brought here
ID he executed, shall again be reprobated before |
he executor r. authorized 60 act under a. Ii
must be hled and recorded, and when this is |
lone, q has the same force and effect as II the
original viii had been executed IN this State |
How n this section To- be understood. ii any /
me intercsted IS it Is provided by section 2lql
20 contest the validity OF the viii. may do SO 10 |
he same manner ~ though % had been origi- /
lally offered Tor probate hereg Ii Is difficult TO
reconcile these two scctions and 20 give the Il
alter me construction routeuded for. would be /
20 defeat the foreign probate, fully recognized /
"a the former section altogether Tie Lerisls- Il
ure. we apprehcud, never intended ann surh /
obstruction 90 be placed upon a.: and We 10 /
rot feel authorized CD give ID .ueh t,tsrrret.-
ion. ID must be construed IN such a manner IL /
possible. a. 90 give all its parts an intelligent i
meaning. 50 that they maN stand ln harmonv
Nth each other, rather than one part Ia conflict
With another. To do this, We feel constrained i
o hold that the distinction between Wills oTrenl /
property. and wills OF personal property must
e maintained. and the night conferred by sec
=
his state, the validity OF wills pr1hatea in
oreign State, limited % wills OF real or i'm
l0vable property.
We have seen IN wills OF real or immovable
ruperty the Ter 'oct rri scfIe governs and tue Il
escut 81 real property, a. well as the devise of 4
&. are governed exclusively by the law OF the
lace whore such property b. situated. And |
lir for The Wisest reasons Scr 10 would not |
8mport either with ihe dignitv, Independence. !
r safety Of any independent State or nation. /
hat these incidents should be liable o. be al |
.cted ia any manner by the legislation or deer
onz Of the courts Of any State OF nation be
des itself, hence. a. follows that 8 will Of real |
roporty although executed Ia a foreign State. |
, be operative in this State. by the express
.nguage Of the statute must be proven accord
~ 81 oar laws and n such will shall be sdmit-
d 20 probate IN the state when made. accord |
N 20 the forms OF our Law. and duly authen-
Gated copy brought here. and recorded and
,gsterei IN the county where the land dis
lsed Of By u Ties, Il has the same force and ei-
nAper w..