Crolly v. Clark

The Chief-Justice delivered the opinion of the court. Two questions are presented by the appeal in this case: I. Whether a last will and testament executed out of this State, to wit: in the State of Rew York, only two witnesses attesting the execution thereof, is valid with respect to real estate in this State. II. What is the effect of the act of the Legislature approved February 27, 1872, ch. 1878, in respect to the rights of the widow in the estate of her husband, he.having died in another State, leaving no children, and, under the law of this State, intestate. 1. By the law of this State every 1 ast will and testament disposing of lands shall be signed by the testator or by some person under his express direction, and shall be attested and subscribed in the presence of the testator “ by three or more witnesses, or else it shall be utterly void and of none effect.” Act Rovember 20, 1828, §51; McC. Big., $86 ; Th. Big., 192. Probate of wills granted in other States are admitted to record in this State with the same effect as to the disposition of property as wills executed in this State; Provided, The said wills made out of the.State of Florida shall have conformed to the laws thereof in the form and manner of their execution. Act Rovember 20, 1828, sec. 59. These are the only acts of legislation bearing on the ques [858] tion. A will to affect real property in this State, made out of the State, must conform to the laws of this State as to form and manner of its execution. It must be witnessed by three or more witnesses, subscribing their names thereto as attesting its execution, or it is “ utterly void and of none effect.” A will, therefore, executed in presence of only two attesting witnesses is of no effect in this State, and a person dying without having executed a will in the manner required by our law is, as to property in this State, intestate. 2. The act of 1872 is “ An act defining the interest the wife shall take in her husband’s property.” The whole body of the act is as follows : “ Section 1. If a man dies in this State intestate, without children, who shall at the time of his death be possessed of real and personal property, or either, the wife shall take the whole estate, or dower, at her election. “ Sec. 2. Where the husband dies intestate without children'the wife shall be sole heir at law.” • ■ The first section, in terms, refers to a husband’s dying in this State; the second refers to a husband’s dying in or out of this State. The sections are complete, each in itself, as though they were contained in separate acts. The object of the act is expressed in its title, to define “ the interest, the wife shall take in her husband’s property,” not only where he dies in this State, but in case of his death- anywhere intestate and childless. Whether the second section making the wife the sole heir at law affects her right of dower as previously s'ecured to her by the statute, iu case she should prefer dower only, it is not necessary' here to determine. With regard to the facts stated in the bill, the result is that as to the real estate of*Mr. Alsop, it is an intestate estate under the laws of this State. He having died in Hew [859] York leaving real property in Florida, and without children, his widow is his sole heir at law. The decree overruling the demurrer to the bill , is therefore affirmed.