Barnes v. Edward

56 Ky. 632

• Court: Court of Appeals of Kentucky
• Decided: January 5, 1856
• Status: Published

Opinion

Chief Justice Crenshaw

delivered the opinion of the court:

The instrument alledged to be the last will and testament of Zera Wilcox, deceased, was made in the county of Nelson, where he lived and died. After his death, this suit was brought by Edward in the Larue circuit court to establish his freedom, claimed in virtue of said alleged last will and testament. The will had never been proved and recorded in the county of Nelson, which county, alone, had jurisdiction of its probate — it had never been proved and recorded in any county. And, without any probate of the will having been had, this suit was brought in the county of Larue to establish the plaintiff’s right to freedom under the will. This could not be done until probate of the will in the proper county. After probate in the proper county, the suit for freedom might be brought in any county where the emancipated slave might be restrained of his liberty. But, the will must first be established, and that in the county of the residence of the testator. Until the will is established in the proper forum, no rights can be claimed or asserted under it.

1. The county court of the county of tho residence of a testator alone has jurisdiction to hear proof of hie will. (Rev. Stat., sec. 27.) Such was the law prior to the passage of the Revised Statutes. 2. Courts of chancery have jurisdiction to establish wills which havebeen suppressed or destroyed, and the jurisdiction for that purpose belongs to the county where the will should be recorded. (McCall vs. Vallandingham, 9 B. Mon., 550.)

The probate of wills has, in Kentucky, always been confined to the county of the testator’s residence ; and the Revised Statutes, page 698, section 27, provides expressly that, “wills shall be proved before, and admitted to record by the county court of the county of the testator’s residence.”

No change has been made by the Revised Statutes as to the county in which the probate shall be made. The jurisdiction, before the adoption of the Revised Statutes, was local and is still local.

Notwithstanding the county court of the county of a testator’s residence is the only court pointed out by statute for the probate of his will; yet. it has not been doubted for many years by any one, so far as we know, that courts of chancery have jurisdiction to establish wills which have been destroyed or suppressed. Nevertheless, the jurisdiction being local, a suit in equity to establish a destroyed, or suppressed will, must be brought in the county of the testator’s residence. Such is the doctrine deducible from the case of McCall and wife vs. Vallandingham, 9 B. Mon. 450. But, if it were even doubtful under our former system, whether any other circuit court than that of the county of the residence of a testator might not take jurisdiction to establish a destroyed, or suppressed will, it is no longer doubtful under our present system of practice, but is put to rest by the Code. The Code of Practice requires that, “an action to establish or set aside a will, must be brought in the county in which the will, if valid, ought, according to law, to be recorded.”

3. No suit can be maintained for freedom claimed under a will which has not been proved or established. 4. Any court of equity, where one claiming freedom under a will, not proved, may be restrained of his liberty, has jurisdiction to restrain the removal of such an one until a reasonable time is given to establish the will.

Now, according to the developments of the present record, the jurisdiction of a court of equity is unquestionable, but the jurisdiction must be exercised by the circuit court of the county of Nelson, which was the county of the testator’s residence, and not by the circuit court of Larue county. The suit by Edward to establish his freedom, was, substantially, a suit to establish the will of his late master, without the establishment of which he cannot be declared free; and any proceeding to establish the will, must be had in the county of Nelson.

The court, however, had jurisdiction to enjoin the removal of Edward from the country, and the injunction to this effect was proper; and the court should retain the cause upon the docket, and continue to control and hire out the plaintiff, until a reasonably sufficient time shall elapse for the probate or establishment of the will in the proper county.

Wherefore, the judgment emancipating Edward is' reversed for the want of jurisdiction in the Larue circuit court to establish the will, and the cause is remanded for the purpose herein indicated,