Meyers v. Smith

50 Kan. 1

• Court: Supreme Court of Kansas
• Decided: July 15, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action of ejectment, brought in the district court of Wyandotte county on October 27,1887, by Sallie O. Smith against J. N. Meyers, W. R. Malott, W. Gerding (really Henry Gerding), Henry Stockhoff, G. Rothert, and L. Brougham, to recover an undivided interest in certain real estate situated in said county. The defendants answered separately, and all except Brougham claimed separate interests in the real estate, and Brougham's answer was a general denial. The case was tried before the court without a jury, and the court found generally in favor of the plaintiff and against the defendants, and that she owned an undivided one-fourteenth interest in the real estate described in her petition and rendered j udgment accordingly; and all the defendants except Brougham united in bringing the case to this court on petition in error, making Sallie O. Smith the defendant in error.

All the parties claim title through and under a common source, namely, Isaac Johnnycake. He was a Delaware Indian, and also a member of the Cherokee nation of Indians. On March 1, 1872, and prior thereto, and up to the time of his death, which occurred on June 15, 1875, he resided in the Indian Territory, and was the owner of all the land described in the plaintiff's petition. At the time of his death he left a widow and seven children, one of which children is the plaintiff in this case; who, under the laws of Kansas, and as an heir of Johnnycake, is entitled to an undivided one-fourteenth interest in all the property left by Johnnycake in Kansas, unless she was divested of such interest by a supposed will claimed to have been executed by Johnnycake at his place of residence in the Indian Territory on March 1, 1872. The sole question, then, in this case is simply whether the evidence introduced on the trial of this case in the district court showed that any such will was ever executed aud probated or recorded so as to make it a valid and effective will or not. Under the statutes of Kansas, no will can pass title to any property unless it has first been duly probated or recorded; and it is claimed by the defendant in error, and tacitly admitted by the plaintiffs in error, that no will can properly be recorded in Kansas, so as to make it pass title to any property, real or personal, in Kansas, unless it has first been duly probated somewhere. Section 29 of the act relating to wills reads as follows:

“Sec. 29. No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate, or recorded as provided in this act.”

"With respect to wills executed in Kansas by persons residing and dying therein, §§ 16 and 18 o.f the act relating to wills read as follows:

“Sec. 16. Every will, when admitted to probate as above mentioned, shall be filed in the office of the probate court, and recorded, together with the testimony, in a book to be kept for that purpose.”

“Sec. 18. If real estate, devised by will, is situated in any other county than that in which the will is proved, an authenticated copy of the will and order of probate shall be admitted to record in the probate court of each county in which such real estate may be situated, upon the order of such probate judge, and shall have the same validity therein as if probate had been had in such county.”

With respect to wills executed in another state or territory of the United States, § 24 of the act relating to wills reads as follows:

“Sec. 24. Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to any property in this state, may be admitted to record in the probate court of any county in this state where any part of such property may be situated; and such authenticated copies, so recorded, shall have the same validity as wills made in this state, in conformity with the laws thereof. When any such will or authenticated copy has been or shall hereafter be admitted to record in the probate court of any county in this state, where any part of such property may be situated, a copy of such recorded will, with a copy of the order to record the same, annexed thereto, certified by the probate judge, under the seal of his court, may be filed and recorded in the office of the probate court of any other county in this state, where any part of such property is situated; and it shall be as effectual in all cases as the authenticated copy of said will would be if proved and admitted to record by the court.”

With respect to wills executed in some foreign state or country, § 25 of the act relating to wills reads as follows:

“Sec. 25. A will executed, proved and allowed in any state or country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state, in the manner and for the purpose mentioned in the following sections.”

All the other provisions of the statutes relating to wills, and providing how they may be probated or recorded, and all the provisions of the statutes relating to executors and administrators, seem to be in harmony with the foregoing sections. Also § 1 of the act relating to probate courts, so far as it is necessary to quote it, reads as follows:

“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction : First, To take the proof of last wills and testaments, and admit them to probate; and to admit to record authenticated copies of last wills and testaments executed, proved aüd admitted to probate in the courts of any other state, territory, or country.”

On the trial of this case, the following stipulation between the parties was introduced in evidence, to wit:

“STIPULATION.

“If is hereby agreed by and between the parties plaintiff and defendants herein:

“1. That the record of the instrument purporting to be the last will and testament of Isaac Johnnycake, deceased, in the'probate court of this county, is a true copy of the record of such instrument as the same appears in the book of wills in the office of the clerk of the district court of the Coo-weescoo-wee district, Cherokee nation, in the Indian Territory.

“2. That on March 1, 1872, and at the time of his death, Isaac Johnnycake owned a single tract of land in Wyandotte county, of which the land in controversy is a part; and that he owned no other land in said county.

“3. That Isaac Johnnycake died June 15, 1875, in the Coo-wee-scoo-wee district, Cherokee nation, Indian Territory, owning the land in .controversy, and leaving the plaintiff and six other children, who together with Jane Johnnycake, the wife of said Johnnycake, were his sole heirs.

“4. That the defendants are in possession and have whatever title could have been conveyed to them by said wife and the persons named in said instrument, as legatees, and hold the same under a direct line of conveyances from the said parties.

“ 5. That Johnnycake was a member of the Delaware tribe of Indians, and one of the members of said tribe who after-wards became incorporated into and became members of the Cherokee nation, in the Indian Territory, under the agreement between said Cherokees and Delawares, and at the time of his death was a resident and citizen of the Coo-wee-scoowee district, Cherokee nation, Indian Territory.”

The defendants below also introduced in evidence a portion of the records of the probate court of Wyandotte county, which reads as follows:

“LAST "WILL AND TESTAMENT OE ISAAC JOHNNYCAKE, DECEASED.

“Lightning Cheek, I. T., March 1, 1872.

“Last will and testament of Isaac Johnnycake, deceased.

“Considering the uncertainty of this mortal life, and being of sound mind and memory (blessed be the Almighty God for the same), do make and publish this, my last will and testament, in the manner and form following, to wit, that is to say:

“I give and devise to my sons, Joseph and Isaac Johnnycake, jr., their heirs and assigns, all that tract or parcel of land situated, lying and being in the state of Kansas, Wyandotte oounty, together with all improvements, houses, etc., and appurtenances belonging thereto, or in any wise appertaining : To have and to hold the premises above described, to the said Joseph and Isaac Johnnycake, jr., their heirs and assigns forever, ,to be divided equally between them, share and share alike.

“In witness whereof, I have hereunto set my hand and seal, this the 1st day of March, in the year of our Lord one thousand eight hundred and seventy-two.

[Signed] Isaac Johnnycake. [l. s.]”

“The foregoing instrument was at the time thereof signed and sealed, published and declared, by the said Isaac Johnnycake, as for his last will and testament, in presence of us, at his request and in his presence, and in presence of each other, have subscribed our names, as witnesses thereto.

[Signed] Sam. D. Loye,

Wm. E. Ketchum.

“Subscribed in my presence and sworn to before me, this the 4th day of May, 1877. In witness whereof, I have hereunto signed my name and affixed my official signature, the day and year last above written.

[Signed] Wm. E. Ketchum. '[l. s.]

“Chakdes Rogebs,

“Judge District Court Coo-wee-scoo-wee District, Cherokee Nation. .

“Subscribed in my presence and sworn to before me, this the 17th day of July, 1877. Witness whereof, I have hereunto signed my name and affixed my official signature.

“Chas. Rogebs, [Signed] Sam. D. LOVE.

“ Judge District Court, Coo-wee-scoo-wee District.”

“I Hereby Certify, That the foregoing is a correct and true copy of the last will and testament of the late Isaac Johnnycake, (deceased,) as recorded in this office.

“ Given from under my hand and seal of office, this the 23d day of August, A. D. 1877. D. W. Lipe,

[seal.] Clerk Coo-wee-scoo-wee, District, Cherokee Nation.”

“in THE MATTEB 03? THE ESTATE OE ISAAO J0HNNY0A3IE, DECEASED.

“July Term, A.D. 1887.—September 27, A.D. 1887.

“Now, This day appears in open court, Jane Johnnycake, the widow of the late Isaac Johnnycake, deceased, who died on or about the — day- A. D. 1875, leaving a last will and testament, a copy of said last will and testament duly certified to by D. W. Lipe, clerk of the district court of Coo-wee-scoo-wee district, Cherokee nation, as recorded in the district clerk’s office of said district, having been filed in this court, and recorded as the last will and testament of Isaac Johnnycake (deceased). And Jane Johnnycake, the widow of said deceased, being requested to make her election whether she will accept the provisions of said last will and testament or take what she is entitled to under the provisions of law concerning descents and distributions, the said Jane Johnnycake, widow aforesaid, then and there elected not to accept the provisions of said last will, but to take under the provisions of law concerning descents and distributions.

“Whereupon, it is ordered and adjudged by the court that said Jane Johnnycake, widow of the said Isaac Johnnycake, deceased, be, and she is, entitled to one-half of the property of the testator in the state of Kansas, after the payment of all just debts of said' testator and the expenses incident to the administration of said estate.

“Ordered, that said will be and the same is approved, except as to the interest of said Jane Johnnycake as herein stated. [Signed] D. R. Churchill, Prohate Judge.”

The defendants below also introduced in evidence a duly certified transcript of certain matters appearing of record in the office of the clerk of the district court within and for Coo-weescoo-wee district, Cherokee nation, Indian Territory, which matters were certified to be “a full, true and correct copy of all the proceedings in the matter of the filing, probating and recording of the last'will and testament of Isaac Johnnycake, deceased, as the same appears in my (the clerk’s) office.” All that there is of substance in this certified transcript is what purports to be a copy of the last will and testament of Isaac Johnnycake, deceased, which in words and figures is the same as that contained in the records of the probate court of Wyandotte county above given. There is no finding or order or judgment of any court or judge contained in such transcript. It appears from the evidence introduced on the trial that under the laws of the Cherokee nation a will may be recorded before it is probated. Such laws also contain the following provision:

“ Each clerk shall keep a set of books, one of which shall be separately devoted to each of the following matters of record, to wit: . . . 4th. Wills purporting to be of deceased persons, verbal or written, as proven or attempted to be proven to the satisfaction of the district judge, with a certificate attached to the record that the will has been so proven or not, as the case may be.”

No such certificate as is contemplated in the foregoing provision can be found in the record in the present case, and there is nothing else in the record tending to show that the will was ever probated in the Indian Territory or anywhere else outside of Kansas; but as the plaintiffs in error, defendants below, do not seem to claim that the will was ever probated in the Indian Territory or anywhere else outside of Kansas, nothing further need to be said upon this subject.

The plaintiffs in error, defendants below, now claim that the will was probated in the probate court of Wyandotte county in this state. They do not claim that this was an ancillary probate of the will, founded upon an original probate thereof at the place of the testator’s domicile in the Indian country where the will had been executed, and where the testator died; but it is claimed that the probate was an original probate in Wyandotte county, and such a probate as might have taken place in that county if the testator had all his lifetime resided in that county, had executed the will there, and had died there. There are many objections urged against this view of the case. (1) It is objected that the probate court of Wyandotte county had no jurisdiction to grant an original probate of a will executed outside of Kansas, as this will was; and it is also objected that such probate court never intended or attempted to grant any such probate, and did not do so. (See the statutes already cited, and the order of the probate court.) (2) The probate court of Wyandotte county did not have jurisdiction or custody of the original instrument called a will, and had no power to procure the legal custody of the same; for it does not appear that the will has ever been in Kansas. The action of such probate court upon this matter was founded merely upon a certified transcript of a foreign record of such supposed will — merely upon a copy of a copy thereof. And it is not claimed that the original was lost, spoliated, or destroyed. (See §§45 to 49 of the act relating to wills.) (3) The probate court of Wyandotte county had no jurisdiction of the witnesses to the will and no power to procure their attendance; for it does not appear that any one of such witnesses has ever been in Kansas. (4) When the supposed probate of this supposed will took place in Wyandotte county, no one appeared as a party or a witness, or otherwise, except Mrs. Jane Johnnycake, who appeared for the purpose of repudiating the will and to elect to take her interest in the property of her deceased husband in opposition to the will, and under the statutes relating to descents and distributions; and no other person was cited, summoned or subpoenaed; and no one asked that the will should be probated or approved. (5) There was in fact no such hearing before the probate court as is required for the original probating of a will, and no hearing at all except that the probate court heard Mrs. Johnnycake’s election and her rejection of the will. Nothing was said or done by the probate court at this time or at any other time that can be claimed to mean the original probating of a will except the use of the following words, to wit: “ Ordered, that said will be and the same is approved, except as to the interest of said Jane Johnnycake as herein stated.”

Evidently the probate court did not intend or believe that this order or any order made by such court was an original probating of the supposed will; and we do not think that it was. (See all the statutes upon this subject, including the act relating to wills, §§ 3 to 16.) We might here say that there is no statute in Kansas which in terms would authorize a will, not executed in Kansas nor by a person residing therein nor dying therein, to be probated originally in Kansas, and all the implications of the statutes are against any such probating of any such will. Under the statutes of Kansas, a will may be deposited in the office of the probate judge during the testator’s lifetime, but only “in the county in which the testator lives.” (Act relating to Wills, §3.) If, when the will is opened by the probate court after the testator’s death, it appears that “the jurisdiction belongs to any other court,” such will, the original instrument, must be taken to such other court, and “be presented for probate in such other court.” (Ibid. § 6.) And original letters testamentary can be granted only in the county of which the testator was “ an inhabitant or resident at the time of his death,” (Act relating to Executors and Administrators, § 1,) except perhaps in cases where the probate, if we call it a probate, is only a second or ancillary probate of the will. (Act relating to Wills, § 28.) If the will has been deposited in the office of the probate judge during the testator’s lifetime, aud the probate court on opening it after the testator’s death finds that the jurisdiction to probate it belongs to the court opening it, then the executors named in the will, or, if none are named therein, then two other persons immediately interested in the will, must be notified. (Ibid. § 6.) If the will has not been deposited in the probate court during the testator’s lifetime, then the first and essential prerequisite to any valid act for the purpose of admitting the will to probate is to get the original instrument into court; and for this purpose the court is given the power to resort to attachment, arrest, imprisonment and other summary remedies. (Ibid. §§7-14. See, also, §30.) After obtaining the possession of the original will, “ the court shall cause the witnesses to such will, and such other witnesses or any person interested in having the same admitted to probate as may desire, to come before such court, and said witnesses shall be examined in open court, and their testimony reduced to writing and subscribed by them and filed.” (Ibid. §12.) But “if it shall appear to the court, when the will is offered for probate, that any witness thereto has gone to parts unknown,” the will may be probated upon other satisfactory proof. (Ibid. §13.) And upon the whole of the evidence, “ if it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.” (Ibid. §15.) And the will, the original instrument, “when admitted to probate as above mentioned, shall be filed in the office of the probate court and recorded, together with the testimony, in a book to be kept for that purpose.” (Ibid. § 16.) And if it should be desired to use the will in any other jurisdiction, “a copy of such recorded will, with a copy of the order of probate annexed thereto,” or “an authenticated copy of the will and order of probate,” and not in any case the original instrument itself, may be used. (Ibid. §§17; 18.) The original will must remain where it is originally probated. In all proceedings for the original probating of a will, it is contemplated by law, as follows from unavoidable implication, that the will itself, the original instrument, must be presented to and filed in the probate court. If, however, the will has been lost or spoliated or destroyed, a different procedure is had. (Ibid. §§ 45-49.) In such a case different and additional proof is offered, and “if the court, upon such proof, shall be satisfied that such last will and testament was duly executed in the mode provided by the law in force at the time of its execution, that the contents thereof are substantially proven, and that the same was unrevoked at the death of the testator, and has been lost, spoliated or destroyed subsequently to the death of such testator, such court shall find and establish the contents of such will as near as the same can be ascertained, and cause the same and the testimony taken in the case to be recorded in said court.” (Ibid. §48.) In all cases where the will has been executed outside of Kansas, by a non-resident of Kansas, both at the date of the execution of the will and at the date of his death, a still different procedure is contemplated by the statute relating to wills. (Ibid. §§24-28.) In such a case the statutes of Kansas contemplate that the will shall be originally probated at the foreign domicile of the testator; and shall, afterward, upon a duly-authenticated copy of the will and of the foreign probate, and upon other proper proof presented to the probate court in any county in Kansas where any property left by the testator may be situated, be there recorded • and be made effectual to pass the title to such property. Such a proceeding, however, in Kansas, if it can be called a probate at all, is only an ancillary probate and not an original one.

Mr. Redfield, in his work on Wills, (vol. 3, § 2, subdiv. 1,) uses the following language:

“The jurisdiction of the probate of wills, and everything pertaining to the settlement of estates, is, primarily, exclusive in the probate court for the district in which the testator is domiciled at the time of his decease. This general rule is of such universal acceptance in all the American states as scarcely to require any authority in its confirmation.”

(See, also, Ror. Int. St. L., p. 248; and In re Capper’s Will, decided by the supreme court of Iowa, May 13, 1892, 52 N. W. Rep. 6.)

It must be remembered that in this case no proof of the execution or existence of the will in question was introduced in the district court of Wyandotte county except a portion of the records of the probate court of such county and a certified transcript of a portion of the records of the district court of the Coo-wee-scoo-wee district, Cherokee nation, Indian country. No original will was produced, and it does not appear that the original will was ever in Kansas, and no witness testified that he ever saw the original will. The proof of the will furnished by the records of the probate court of Wyandotte county is founded solely upon the records of the district court of Coo-wee-scoo-wee district, Cherokee nation, Indian Territory, and the only proof of the will furnished by these last-mentioned records is that a copy of the supposed will is found recorded in such records; but no certificate is attached to the record, as is required by the laws of the Cherokee nation, showing whether such supposed will was ever “proven or not, as the case may be.”

Indian Territory—Cherokee nation—will, wyandottedin county. Upon all the facts of this case, we think it must be held that the will was not sufficiently probated or proved to make it effectual to pass title to property situated in Wyandotte county; and therefore yje judgment of the court below was right, and it will be affirmed.

All the Justices concurring.