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

sses
eoDts certain devises Of real estate in the State IF
Tennessee, and elsewhere-aso requests Of large
amount Of Debts chooses in action elc.-against and 10
the hands of parties resident Ia the county Of Davidson,
State on Tennessee, which the executor cannot collect
without letters testamentary granted in said State.
Il further appears in the petition that the application
TO have the will admitted 10 record in Tennessee
made by the executor in person the 29th OF June,
1857 which refused for the following reasons set
out in exhibit "a" to tho petition
orhis day Thomas G. Williams appeared open court
and presented duly certified copy Of what purportsd to
be the last viii and testament Of Cynthia P. Williams,
deceased and which purports 10 have been duly admitted
to probate in the city and county Of Philadelphia and
State Of Pennsylysnia but TIE County Court being Of
opinion that il necessary to prove the an
original will in the State Of Tennessee, doth reuEe said
application TO admit said certified copy record and
also refused to grant letters testamentary 70 said VIII
liams as executor OF said will
This order not entered upou the records Of the
County Court but it seems superindueod the appi-
cation for mandamus to compel the County Judge TO
receive and admit to record the certified copy Of the viii
il question. The Circuit Judge Issued alternative
mandamus, and upon motion, admitted Narcissa T.
Saunders and John E. Saunders who are the brother
and sister Of the testax and claim interest as next
OF kim in the real aad personal estate included IL her
viii, to appear and answer the petition The county
Judge aud John E. and Narcissa p Saunders answered
separately The former admits substantially tue aega-
tong in the petition, except 10 the dOmie Of the te
tatrix the time Of her DEATH but assigns as reason
for not admitting the will to record that PRIOR TO the
certified copy Of said will TO the County Court Of David
county for record when his defendants John T.
and Narcssa p Saunders next Of hin to the tesatN
appeared and contested the validity Of the wei, which
was under the forms Of law certified to the Circuit
Court of said county be tried under issue Of deT
ret vel non and that at tho time of its second resent
tion, the 10Th of june, 1857 he had no Official kuow
edge that that Issue had been found in favor OF tue val
idy Of the will On the contrary it afterwards trans
PRED the issue had been found before the second pre-
sentation Of the will to the County Court by jury Of
the county, against the validity Of the wills and there
fore he did not feel authorized to admit the copy to
record and issue letters testamentary thereon.
The other defendants, John E. aud Narcissa P. Saun
ders answered Jointly and claim, before to be the
brother and sister of the testaOr and aego that she
born and raised in Tennessee and that her entire estate
except lands in Mississippi, and her personal ap
parel, jewels paintings, etc. at her death, was situated
in the State of Tennessee She married in May 1869,
and in the following juno her husband, the relaOr,
made, and caused to be proven and registered in the
county Of Davidson, decd Of settlement upon his wife,
the estarix whereby he conveyed all the real and per
sonal estate moneys chooses in action of every kind and
description, to which she was, prior to her marriage,
TO which she might thereafter become entitled by gift,
devise Inheritance from all persons whatsoever OK
cep himself to the sole and separate use of his said
wife, free from the future debts contracts liabilities of
himself those claiming through and under hiU with
unlimited power Of use and disposition.
The will, as ii appears made in Tennessee, with
the full assent and approval Of the relator aud
thereafter he aud the testatx visited Philadelphia the
residence Of the parents Of the husband and while there
she gave Dirth 10 chlld shortly thereafter
child having died before its mother.
Tho defendants John L. and Narcissa p Saunders,
rely the verdict Of the jury, and Judgment Of the
Circuit Court of Davidson county setting aside the will
in question, and deny that Philadelphia the fixed
residence and domic of the testarix the time of her
death The proof shows that the relator at the time Of
his marriage, belonged TO the United States army and
that he had fixed place Of residence, except his
f4aers house. in Philadelphia where the tosatrx died
After his marriage he frequently spoke Of fixing his resi-
denee IN Tennessee but shortly before his wes death,
both he and his wife shown have been looking for
suitable property to purchase in the city of Philadelphia
as residence and permanent home
Under this state of facts the court, upon notion dis
missed the petition, and refused peremptory manda-
mus, from which the defendants appealed in error to
this court The has been argued with great zeal
and ability both Sides and the questions involved are
somewhat novel in this State but altogether without
the light of authority The question most deliberately
discussed, and upon which tho real merits Of the
rest arise out Of the effect to be given to the probate Of
the WILL in the State of Pennsylvania And serious
difficulty would be presented upon this question: it
not for the peculiar phraseoogy of statutes pTovd
ing for the probate of wills executed in other States
code il is provided that wills executed in other
States in any Of the territories in the District Of
Columbia, shall be proved according to the laws of this
State, and certified in the prescribed by the act
of Congress "a copy Of will certified shall be
registered in the county where the land lies, and copy
from the books Of the register duly certified shall be evil
denec
To have sa,h effect It Is Obvious the uibun ia Which
the will admitted 30 probate must have competent
authority. In the under consideration we have
seen, the viii proven before the Regiser Of Wills
in the city and county Of Philadelphia. The Register
Wills" by the laws Of Pennsylvania, is judicial Off
cer and the 5th section of the act creating the Office Of
Register of Wills" in the State of Pennsylvania, and
defining his powers and duties, declares that every
Register qualified to act as aforesaid shall have ursdic
ton in either the county for which he shall have been
appointed of the probate Of wills and testamon Of the
granting Of letters tesamentary, and Of administration
OF the passing and filing the accounts Of executors adj
minstTators and guardians and Of any other matter
whereof tho jurisdiction shall be annexed his said Of
fee and the act Of any Register in any matter whereof
another Register has the exclusive jurisdiction shall be
void and of no efect"-Burdon's Digest 705 and noto
also title Defendants Estates, book, 1S7.
BY the 10Th section OF this act, tho Register Of Wills
aud the Judges Of the Court Of Common Pleas Of any
county, any two Of the judges, authorized to com
pose and hold, from time to time occasion may re-
quire the Registers Court of such county and when
convened according to law such court is vested with
plenary power and jurisdiction to do and perform all
such judicial acts in matters lawfully brought before it,
belong to the Office of Register of Wills To this TIL
buna by the subsection of the act appeals lie from all
judicial acts and decisions Of the several registers
vided they aye pronounced within the term of three
years.
Thus it is apparent wthourt drawing moro partieu-
larry and at large from the act ITSELF that the tribunal
before which the will 10 question admitted to pro-
bate had full power aud jurisdiction to take the probate
of Wills and to issue letters testamentaTy thereon. Now,
what is the effect Of the judgment Of probate in the State
of Pennsy vaGia, when certified according to the act Of
dsregarded and open in the courts of Tennessee to re-
probate and cOntestaony We think clearly not 1t is
established beyond all controversy, both in this country
and IN England, that the jurisdiction of probate courts
being exclusive il regard TO all matters pertaining to the
settlement Of estates Of deceased persons the DEGREES Of
such courts upon the probate Of wills and issuing letters
testamentary we'll Of administration, absolutely
impraccabe and conclusive in oil other courts both in
law and equity; "and such DEGREES" says Mr.. Redfed
Wills part 2, page A. Cannot be impeached, even
by showing fraud except by petition the
Tho tho
We cannot therefore, be shown, cOllatcrally, that
another person appointed executor that the tesla
tor was insane, or that the will fogery Archer
rs, Nope 2, Vernon S, Plume vs, Bealo, l p. Mass,
SSs; Wins. Ex'trs, III See also Redfeld Wills,
p. So, sec. 9, and notes
It admitted that the language of section 80 of
code is peculiar but fair construction Of the whole
ticle upon the subject Of foreign wills admits Of any
other reasonable Interpretation To hold that this
ton opens the whole question of probate dc would
be t deny to the preceding sections Of the article
all validity, for they provide as has already been shown
that when any foreign viii has been proven according to
the laws of this State, court before tho Mayor of
any city any person Interested MAJ present copy there
Of duly authenticated, 70 tho County Court of any
" in the State whore the land estate devised dis
posed Of BY will is situated and thcreupon such couVt
may order the same be flied and recorded aud said
copy when recorded shall ha e the force and
effect the original had been executed IN this State
and proved and allowed in the courts Of this State
It is plain that the statute does contemplate that
foreign will when proven according the law of this
State and brought here to be executed shall again be
reprobaod before the executor Authorized TO act under
IL II must be "flcd aud recorded and when this j.
done it has the same force and effect If the original
| will had been executed in this State
How this section to be understood, If any ono inter
essed as is provided by section 2l9O to contest The
validity of the will nav do so in the same manner
though IT had been originally offered for probate here
It is difficult TO reconcile these two sections, and q give
tho latter the construction contenled Tor would be 70 de-
fea, the foreign probate fully recognized in the former
| section, altogether.
The Legislature, We apprebeud, never intended any
such construction to be placed upon IT, and We dc not
feel authorized to give such Interpretation must b
construed in such manner il possible, as to give all i
l -. :ra.lli..nrt NAMING fhat fhnv slanl ir