Hoysradt v. Tionesta Gas Co.

Opinion by Mr. Justice Green, The only important question at issue in this case is as to the effect of the probate of the will of a nonresident owner of real estate situate within this commonwealth. The testator, Abner Hammond, resided and died in the county of Hudson in the state of New York. He died in the year 1849, leaving real and personal estate in New York, and also seized of real estate situate in Forest county in tliis state. The premises involved in the present contention are a part of the real estate in Pennsylvania. The will was duly proved in the state of New York and letters testamentary issued thereon, and the settlement of the estate of the testator was proceeded with during a number of years under the law of that state. A number of changes were made in the office of executor by the proper court in the state of New York, in the office of executor and trustee under the will, in consequence of the resignations or death of the persons named as such in the will. In March, 1873, all the preceding executors and trustees having died or resigned, one Charles W. Macy was duly appointed as their successor by the proper court in the state of New York. In November, 1879, an exemplification of the probate of the will in the state of New [256] York was duly filed and recorded in the office of the register of wills in the county of Forest in this state, where the land in question lies. There is no question as to the regularity and lawfulness of this probate of the will in Pennsylvania involved in the presept contention. It is therefore assumed that the establishment of the will in Pennsylvania, so as to give it full legal effect in relation to lands of the testator situate within the limits of our territory, was complete and perfect in all respects. The record discloses no controversy upon this matter. Ity the terms of our early legislation on tins subject in the Act of 1705, 1 Sm. L. 33: 1 P. & L. Dig. 1501, sec. 155, it was expressly provided that foreign wills thus proved “ shall be judged and deemed and are hereby declared and enacted to be matter of record, and shall be good evidence to prove the gift or devise thereby made.” Our general act relating to registers and registers’ courts, approved March 15, 1832, P. L. 135, contains in its 12th section (Pur. Dig. 572, pi. 7) more ample provision for the probate of foreign wills by means of authenticated copies, “with the same effect .... as upon the originals,” and the 17th section (Pur. Dig. 574, pi. 15) provides that “ All original wills after probate, and the copies of all original wills produced under the provisions of this act shall be recorded and filed by the register of the respective county .... and the copies of all and such of the probates thereof .... shall be adjudged and are hereby enacted to be matter of record, and good evidence to prove the gift or devise thereby made.” The effect of this legislation is to give to foreign wills thus proved and recorded within our state the same legal force.and consequence as if they were domestic wills regularly proved and recorded. That being so, the power and authority of the executor or trustee named in the will to make conveyances of real estate situate within our territory, in accordance with the directions and provisions of the will, are precisely the same as they would have been had the testator been a citizen and resident of our state at the time of his death. It follows, therefore, that if Charles W. Macy had been the executor and trustee named in the will at the time of his conveyance to A. S. Allshouse, in October, 1885, of all the oil, gas and other minerals (excepting coal) on the premises now in controversy, that conveyance would have been a perfectly lawful and valid exercise [257] of his authority under the will, and would have passed the whole title of the testator thereto to the purchaser. But it is now objected by the present plaintiff that the conveyance to Allshouse was invalid because Macy was not the trustee named in the will, but was appointed to that position by the Supreme Court of New York, for the county of Hudson. The only objection to the validity of the conveyance is that the court making the appointment had no power to make a decree for the conveyance of land of the testator situate within the territorial limits of Pennsylvania. The answer to this contention is, that the New York court did not make and did not assume to make any such decree, or any decree having such an effect, or any decree in relation to the conveyance of land in Pennsylvania. The only act of that court in the premises was the appointment of Macy as successor to the office of executor and trustee of the will of the testator, because the office had become vacant by the death or resignation of all the' preceding incumbents of the office. It certainly cannot be, and is not, disputed that the appointment was made by the only court having jurisdiction to make it, and so far as that subject is concerned the contention is not founded upon any objection to the authority of that court to appoint the successor to the trust, but that such an appointment must be regarded as a constituent part of a decree for the conveyance of the land in question. We cannot possibly accede to the correctness of this contention. If followed to its logical consequences it would result that the will of the testator directing the sale and conveyance of his lands could never be executed as to lands lying in Pennsylvania, because it is perfectly clear that no court in Pennsylvania would have the power to appoint the successor to the trust, and if the appointment by the New York court was invalid as to the lands in Pennsylvania, those lands could not be sold or conveyed at all under the authority of the will. The vice of the argument for the appellant consists in regarding the action of the New York court as a decree for the sale of the land, when in point of fact it is not a decree of that character in any respect whatever. The sale was not made under any decree of any court. Tt was made under the authority conferred by the will, which was ample for the purpose. As a matter of course that authority was proper to be exer [258] cised only by the persons named in the will or their successors in the trust, and the actual successor in the trust, whoever he might be, was the only legally authorized person who could execute the power. The authorites cited for the appellant have no analogy or pertinency to the question before us. This is especially so with the case of Williams v. Maus, 6 Watts, 278. That was a voluntary assignment for the benefit of creditors, made in the state of Maryland by a resident of that state, and of course under the laws of that state. There was no compliance with the requirements of our laws in such conveyances. No act was ever done in our state to make it a valid conveyance under our laws, and of course we would not undertake to incorporate the laws of Maryland in relation to' assignments for the benefit of creditors into our system of law in that class of conveyances, merely to meet the exigencies of one particular case. But in the present case our own statute law was strictly complied with to make the will of the testator a Pennsylvania instrument, to operate as a muniment of title to the estate and property of the testator within our jurisdiction. Nothing of the kind occurred in any of the cases cited for the appellant, and they are all therefore entirely lacking in this most fundamental and vital particular. We know of no reason why the conveyance by Macy, as trustee under the will of the decedent, Hammond, to Allshouse was not entirely efficacious to convey the whole of Hammond’s title just as certainly and as surely as if it had been made by the trustee named in the will. Entertaining these views, it is unnecessary to consider the other matters discussed in the paper-books. They do not control the decision of the case, whereas the question we have considered does control it entirely. The assignments of error are dismissed. Judgment affirmed.