Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1869-01-06

State where the and estate devised disposed Of by
tho will situated, and thoreupon such may order
the be filed and recorded and said copy when so
recorded shall have tho force aud effect If the
original had been executed in this State aud proved and
allowed in the courts Of this State.
"And such will, if proved according to the laws Of this
State wills made and executed within the limits Of
this State shall be sufficient to pass lands and other
tates." See sections 2, 1872 2,ls3, 2 "a and 1855.
Sections 1856 and 21s7 provide fer the different
Of aulheaticating wills executed beyond the limits Of
the Stale when proven before court the Mayor Of
any city or eorporahop aud section 2,lsS declares
"STch copy authenticated copy thereof when
corded and certified BIZ the clerk OF the Court in the
State where the Is recorded, shall be evidence"
Immediately following this section it is provided
When there shall be goods aud chattes in this to
be administered under such viii, the executors
Of them, may qualify such aud they shall give
bond with sureties required in where the will
made within the limits Of this State and be subject
be proceeded against in other And persons
interested contest the validity Of such WILL may do so
in the same manner though Il had been originally
presented for probate in said court Sections 2lS9 and
2,l90
These provisions Of the code raWa from tho act Of
1925 chap. II, aud in substance and effect the
Both acts involved in cbseurity scarcely capable
of intelligent construction. No clear distinction is
recognized between wills of personality m0veabes and
wills Of mmoyeable real property; is it declared
whether The foreign probate Of wiz shall be pra facie
evidence OF its validity whether the viii, when pre-
sented for record here shall be proven dc noyo.
1t is declared 70 be open to contest in the
il it had been originally offered for probate here
a
is thrown upon the plaintiff how is it be done if the
law Of the State where il is executed different from
the law Of States to the capacity Of the testaor 10
make Wi and ts formalities Of execution Cases
might be imagined up On this construction of the stat
ute that would involve much difficulty if render the
act wholly impraetcahle.
By the law there is well defined distinction
between wills Of peTs0alty movcabes and wills Of
real immoyeabe property. In the former case the
law of the actual doIno Of the tcsator is to govern
and If the viii IS void by that law, it is nullity
everywhere, though executed with the formaties re-
CURED by the law of the place where the property is
locally situated Phere is says Mr. Greenleaf in his
valuable work evidence, VOL, sec. 66S "no differ
enee In this respect between Of succession by
lament and by jntesacy, both being alike governed by
the rule, mobilia personam sequenter Story's Conf
Laws, subsecons 49, 469, Stanley vs.. Barnes Hagg
Eccl r., S75; Greenleaf 1916 Vattels Laws Of Ma
tons 2, chapter s. sub-sections ITO, Ill Kent Com,
5l3; l German an Wills, to 6, and notes.
But in regard to wills of immoveabo or real prop
ery it appears to DO equally well established that tho
law Of the place where the property locally situated
to govern the capacity or ineapaev Of the Tesla
tor the extent Of his power dispose Of his property
and the forms and solemnes give the will it's due a.
tesaton and ,fect StOrys Conf. Laws, see. Al and
authorities there cited; l German on Wills l. 3 and
Perkins notes 4 Kents Conn., SIS.
In England the distinction between wills of personal
property and wills of real property has been constant
y maintained in fact the ecclesiastical courts, until
recently lad 40 jurisdiction whatever except wills
Of personal estate, and the law courts had
eognizance over wills of real estate.
1t may be, therefore, said, a rule of law alike ap-
picable in this country and in England that the lex
loci rel setae governs in cases Of immoveabc real
property, aud the lex domicilie ia Of movable
or personal property.
In this State our local laws have been somewhat
variant from the general doctrine By the act of 1902
chapter l2I Clor Mich, rs, an administrator or an
executor who had obtained letters Of administration or
letters tesamCntary in any Of the United States
or Territories authorized upon presenting his let
teTs whether q administration or estamentary, au-
thenticated according to act Of Congress TO in
his representative capacity in any court ie this State.
in the if such letters had been grant
ed by the cOurs of Tennessee.
The act of 1928 chapter 81, which, as we have
shown, was Carried into the Code did repeal the
act Of lSVs tat 1t was continued in force and effect
Mich. supplement-, loo, Smith Maberry z Yer 20,
Allsup vs.. Allsup 10, Yer. 2S3.
True, foregh executor administrator could not
be sued in the courts Of this State in
Of his foreign etters estamentary, of admiBistra-
ton but unde the act of 1902 lie could sue and col
lect assets, and go hence without account unless in
deed, they might, while in trausitu, be detained in
some manner by tho domestic creditors.
Now since the repeal Of the act Of 1902 by the act
$780, what construction is to be given to the act of 1925
Wkich brought forward and cf eora3ad inta the act
sections 2,I82 TO 2,192
We have direct adjudication upon this statute in
yOlving the precise point raised in this Is foreign
WILL after probate in the State, where it published
when brought here open under laws to conestaton
and probate
The answer this question involves the consideration
of the effect Of foreign probate, and especially tho eff
feet Of the probate Of tho will in question before the
'Register Of Wills in the State OF Pennsylvania As
general rulo Of law the Judgment of Probate Court al
lowing proof Of viii and admitting it to probate is in
the nature Of proceeding remthat is, adudica-
ton pronounced (as its imperts upon the status
of particular subject matter, by tribunal, having
competent authority for that purpose, and, therefore,
binding and conclusive upon the rights of all persons in
tereted in che property be administered though they
not named parties, Redfed wills part 2, PIP
Il andn 10 nd fhe aUth fharp
cited Also Creppen Dexter 10 Grays report, $685.
Smiths leading cases, 490 Pallan executor, ALI
son ct al Z Hum. 500, ! Yer. $40.
But it is far otherwise as we have shown on wills Of
personal movable property Such property is pre-
umed to follow the peT6on of its owner and hence the
lex domicie governs Tho books everywhere recognize
this doctrine and Judge Story, in The Of Tompkns
TOnpkns StoTys Reports, 547 has appropriate
" presented this whole doctrine that have taken the
liberty of making the following extract from his opinion
After giving the rulo in relation real property be
says "Bu it is otherwise in Of personal property
Tho sentence degree of the proper Ecclesiastical
Court the personal estate is not only evidence but
it is conclusive of the validity inYalidity of the will
chat the question cannot be reexamined or lit
gated in any other tribunal The is that it being
the decree of court Of competent urisdic
on directly upon the very subject matter in controver
sy to which all persons who have any interest on, or
may make themselves parties for the purpose of contest
ing the validity Of the will it necessarily follows that il
conclusive between those parties. For, otherwise, there
might be conviction sentences adjudeaons upon the
subject between the parties, and
the subject matter be delivered to interminable
doubts and the general rules of law the effect Of
res jail I'c be completely oyerthrOwn In short such
sentences treated Of the like nature sentences
proceedings necessarily conclusive upon the mat
or in controversy for the safety and reposo Of
mankiUd This doctrine" says the learned Judge "was
fully considered and established in the great Of the
Duchess of Kingston before the House of Lords, II lag
State Trials $685. where Lord Chief Justice De Grey de-
clarcd the opinion of all the Judges 1t has also, on
rious occasions been considered aud recognized in the
Supreme Court Of the United States and especially il
Croudson VS. Leonard, Crouch r., i3i; Crouch H.
1875 GiIson vs.. Hoyt, What. r. 2i6 Armstrong vs.
Lear 70 What r. 1863 Elliott vs. Peersol, Peters r.
33s, and Thompson IS. Tono ? Peters R, l57.
We recognize the principles Of this conestnl
the question under consideration aud as established law
sustained by overwhelming weight Of authority, and
in perfect harmoncv with the structure Of Govern
! ment Any other doctrine would be az war with the
national comfy that everywhere prevails between moe
pendent States and nations, not IN conflict Win tu
cous ti,uon Of the uited States which requires tina
the acts and judicial proceedings in one state, shall b
respected in the aud tribunals Of others Article
section /. Constitution of the United States Croppen
vs.. Dexter, lj Gr1ys r., $50 Christmas vs. Russell
| Wal, Dps.
Il follows. therefore that far as the viii in question
purperts % dispose Of personal property the Probate
Cpr II the domic Of the tesatrix had the exclusive
Jurisdiction To decide upon its validity uyadity
will personal property aud as such was not open To-
| contest in the courts Of Tennessee
The Judgment on decree Of the Register Of Wills being
tribunal Of compeeat jurisdiction, and in the nature o.
proceeding ia rem, Is, necessarily conclusive aud bind
lag upon all persons interested in the property 70 be al
ministered uut the same is reversed annuled OF eel
aside by proper proceeding ia tho judicial tribunals Of
the domic tho tcstarx As Be the effect the judgment
Of the Circuit Court u Davidson county upon the issue
of devisav vel non which incidentally referred to II
tho answer Of the defendants do not feel called upon
10 say more than remark hatit canno be held TO va
cate te Judgment probate nh court Of Pennsylvania g
far as the viii assumes dispose Of the personal property o.
the testatrix effect might be as viii conveyns
real estate in Tennessee re meet hot nov ~ -
not before u.s. In this proceeding 10 any
enables 60 pass upon The validity or inYaly
Of that judgment
. There can but te doubt as 10 ihe donc 81 me
trix at The death The preo shows that she Ea
born ana raised state Of Tennessee but u IS equay a
parent that her husband resident OF Pens a. ls
time his marriage and in such case The doiacA Of .a'