Bowen v. Johnson, Administrator

5 R.I. 112

Opinion

Ames, C. J.

This cause comes before us, upon a motion for a new trial, for the decision of two questions which are raised by it; first, whether as a matter of practice, a subsequent will, made and admitted to probate in another state, can be allowed to be filed and recorded here, without first revoking the probate of a prior will of the same testator, made by a court of probate in this state; and second, admitting that this may be done, whether the probate of the later will in another state, though'taken subsequently to the domestic probate of the prior will of the same testator, is conclusive evidence of the validity of such later will, by force of art. 4, sect. 1, of the constitution of the United States. The appellant contends, that both these questions should be decided in the affirmative; notwithstanding the apparent inconsistency of holding, that a domestic decree of probate, unrevoked and unappealed from, is of no force to hinder a judicial act in derogation of it, whilst a foreign decree of probate is conclusive, and its merits cannot be inquired into, for the purpose of ascertaining whether a foreign will shall be filed and recorded here, so that it may operate upon real and personal estate within the jurisdiction of this state at the timé of the death of the testator.

We propose to consider, first, the second of the above questions, as first in order of importance.

It is certain that our statute concerning the probate of wills, (Rev. Stats, ch. 155, §§ 5-10,) does not proceed upon the supposition that a foreign probate, or the probate of a will in another state, which are placed by it upon the same footing, are conclusive as to the validity of the will here, as a will either of real or personal estate; but, on the contrary, supposes, that neither is of any force to operate upon property here, except so far as the statute accords it to them. In this respect, our legislature pursues the course of legislation, common we believe to nearly all the states, of making the extra-territorial probate primé facie evidence only of the due execution of the extra-territorial will, when proper proceedings are instituted here for its allowance and record ; leaving it for those who upon the notice issued appear to object to the will, to show cause, if any they have, against the filing and recording of the same. We have already had occasion to consider, in the case of Olney & others v. Angell, Adm'r, infra, a case argued since, but decided before, the case at bar, the nature and effect of the probate of a will in a foreign court, or in the court of another state, when the will is introduced here as evidence of title to things within this state at the death of the testator ; and see no reason to change our conclusion in that case, in application to a direct proceeding like this to give sanction and operation here to a will so proved, except so far as the statute authorizing the proceeding may require. The probate of a will is unlike a judgment between parties subject to the jurisdiction of the court rendering it, in this, — that being but a decree in rem, usually passed upon constructive notice only, — it is confined in its operation to things within the state setting up the court which takes the probate. It has been so treated, as we ,have seen, 1 in the country from which we derive our jurisprudence, and in general, at least by the courts and legislatures of our own. “ Full faith and credit ” is given to it abroad, when the same faith and credit is given to it which it has at home; and that is, that it is to be conclusive evidence of the validity of the will, as affording title to things within the jurisdictional'limits of the court at the death of the testator, whether such title comes in contest within or •without those limits ; but, de jure, no evidence whatever of title to things not then within those limits. The clause of the constitution of the United States referred to was not designed to extend the jurisdiction of local courts, or to extend beyond its just limits the operation of a local decree; but to provide a mode of authenticating evidence of the record of a judicial proceeding had in one state, so that the proper general result of it might be conveniently attained in every other state, against persons and things justly within the range of the proceeding. Notwithstanding this clause, a judgment in a suit between parties is, as such, void out of the state, as to parties not personally served, and not appearing to defend within the state whose court renders the judgment; although, if the suit be commenced by attachment of things within the state, it is, without such service or appearance, good as a judgment in rem against those things, to condemn them to satisfy the judgment. As little does this constitutional provision extend the jurisdiction of a municipal court of probate to things beyond the limits of the state which sets it up, and is quite satisfied, in our judgment, “ with leaving the probate of a will where it finds it, a decree local in its nature and operation.” Olney & others v. Angell, Adm'r, infra.

Upon this ground, therefore, we cannot grant a new trial of this appeal.

With regard to the question of practice, the pro forma ruling of which adversely to the appellant affords the other ground of his motion for a new trial, we feel at liberty, in the absence of any authority binding upon us, to decide it in the mode which, considering our circumstances, will the most directly lead to just results, with the least inconvenience to parties litigant. Our statutes nowhere recognize in express terms the power of our courts of probate to revoke a probate once granted by them; leaving that just and necessary power to be implied from their general power to “ take the probate of wills, and grant administration on the estates of deceased persons.” Rev. Stat. ch. 151, §§ 3 and 4. No one can suppose, however, that such power of revocation does not exist in them ; else, if probate of a will be granted, and the time of appeal be passed, inasmuch as their jurisdiction is exclusive, there would be no mode in ' which a later will of the testator, subsequently found, could be proved, without the inconvenience of having out, at the same time, conflicting authorities, issuing from the same source, and with regard to the settlement of the same estate. Now it would seem to be quite congruous with the statute mode of conferring this power of revoking the old probate, to wit, as incidental to the power of taking probate of the later will when discovered, for the court to exercise this power of revocation, as incidental to the new grant of probate, rather than to make it necessarily the subject of preliminary and separate action. Such a practice would save the delay and expense of double proceedings, and enable the court to revoke or modify the old probate, as the old will utterly conflicted, or was capable of partially standing with the new one. Notice of the petition for the probate, or for filing and recording of the new will, must necessarily be given to the parties interested under the old one ; and the prayer of such a petition incidentally involves the revocation of the probate of the will of prior date, so far as such will conflicts with the provisions of the will of later date. We can perceive no danger of confusion or injustice in allowing this double, but dependent duty, to be performed by the court upon a mere petition for the probate of the later will; and its simplicity qnd directness commend it, as a matter of practice, in other respects, to our favor. Without doubt, the probate of the first will must stand as conclusive upon courts of common law and chancery, until revoked by proper proceedings in the appropriate court, as decided in Annesley v. Palmer, 9 Mod. 8; and in Allen v. Dundas, 3 T. R. 125, 129; Prosser v. Wagner, 38 Eng. L. & Eq. R. 201, 205; and the practice in the English ecclesiastical courts probably is, not, in general, to grant probate of the later will, until service of a citation, calling upon the] executor of the prior will to bring it in for revocation. Yet this rule of practice is amenable to circumstances; and in the late case of Wilkinson and Webster v. Robinson, 14 Jurist, 72, probate of the later will was taken by the prerogative court, notwithstanding a decree, ordering the executrix of the former one to bring it in in order that the probate of it might be revoked and that probate of the second will might be granted, could not be served upon her, — she residing in France, and avoiding service of the decree. The cases of Campbell v. Logan, 2 Bradford’s Surrogate (N. Y.) Rep. 90, and of Shultz v. Shultz, 10 Gratt. (Va.) Rep. 358, cited by the appellant, are not only in point as to the exercise by courts of probate of the power of revoking the probate of a former will, as incidental to taking probate of a later one of the same testator, under legislation similar to our own, but, as we understand them, to do this upon a mere application to prove the later will. Without deciding, therefore, that such power of revocation may not be exercised upon a direct application to the court for that purpose, we have come to the conclusion that it may be exercised upon a mere application to take probate of, or to allow to be filed and recorded a copy of, the later will, as incidental thereto ; and that upon the ground of misdirection in this particular, a new trial must be granted to the appellant in this cause.

1 Olney & others v. Angell, Adm’r, infra.