Carpenter v. Denoon

McIlvaine, J. The property in controversy being situate in this state, it is conceded that the rights of the plaintiffs below, who claim under the will of Thomas Pemberton, must be determined under the laws of this state and not by the laws of Virginia, where the will was made. It is also conceded that the wills act of 1824(2 Chase, 1305), which was in force at the death of the testator, required that wills disposing of property in this state, but executed and proved in a sister state, should be executed in conformity with the statute of this state. Bailey v. Bailey, 8 Ohio, 245; 17 Ohio St. 181. 1. The first objection to the judgment belQw, made by the plaintiff in error, is that the record does not show that the will of Thomas Pemberton was attested and subscribed in the presence of the testator by two or more witnesses who saw him subscribe or heard him acknowdege the same, as required by the second section of that act. The point made is, that notwithstanding anything in the record, the — 391 — witnesses to the will may have subscribed it elsewhere than in the presence of the testator. It is true that it is not stated that the witnesses subscribed the will in the presence of the testator, or that they saw him subscribe or acknowledge the same, either in the record of the probate in Virginia, or in the order admitting it to record in Clinton or Pickaway county, or in the agreed statement of facts. The attestation clause, however, on the face of the will, is in these words: “ Signed, sealed, and published in presence.” And the record of probate shows that the writing was proved by the oaths of Tarletou Fleming and Abner Nash, two of the subscribing witnesses, to be the last will and testament of Thomas Pemberton, deceased. The plain import of this attestation clause is, that the testator and the witnesses signed the instrument in the presence of each other; and, independent of the record of probate, it affords a presumption that all the signatures wore affixed at the same time and place. Where the execution of an instrument purports to have been attested by a witness, its execution is proved by showing the genuineness of the signature of the witness, although there be no attestation clause. The presumption in such case is, that the witness saw the maker sign or acknowledge it. And there is no more reason for such presumption than there is for presuming that the attesting witness signed the instrument at the same time and plabe, and in the presence of the maker. In either ease the presumption is based upon the probability of the fact, arising from the known and usual mode in which such things are done. We think, therefore, that this objection is not well taken, and in this conclusion we are supported by authorities. 12 Cush. 342; 10 Allen, 358; 2 Strange, 1109; 2 Grattan, 439; 1 Redfield on Wills, 243. 2. The next objection is that the record of the will and probate in Clinton county was irregular, unauthorized, null and void. The point made is that the Court of Common Pleas of Clinton county, in matters testamentary, was a court of special and limited jurisdiction, and as such had — 392 — no jurisdiction to allow and admit the will to record at the term when it was first produced, and “ without a continuance of the motion to the next term and notice of the application in a public newspaper,” as provided in section thirty of the wills act of 1840, which was then, to wit' March 4, 1846, in force. This objection is not well taken, for the reason that the provisions of that section relate solely to wills “ executed, proved, and allowed in any country other than the United States and territories thereof.” The proceeding in the Clinton county court was had under section twenty-eight of that act, which relates to wills executed in our sister states and territories of the United States, and does not require either a continuance of the motion or the giving of notice of the application for the admission of such wills to record. The proceeding to admit to record in this state a copy of a will of this class, is not, under this statute, adversary in its character. Nor can the proceeding be objected to because it is not adversary. It was clearly within the power of the legislature to have made foreign wills effectual to pass title to property in this state without requiring any record thereof in this state or elsewhere. And therefore it was within the discretion of the legislature to impose or not to impose conditions upon the admission of such wills to record within the state. 3. In stating his objections to the record of the will in Pickaway county, made in 1869, the plaintiff in error claims that the plaintiffs below were concluded by the provisions of section thirty-four of the act of 1840, which provisions were re-enacted in the thirty-second section of the act of 1852. These provisions are as follows : “ No lands, tenements, or hereditaments shall pass to any devisee in a will, who shall know of the existence thereof, and shall have the same in his power to control, for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect, the estate de — 393 — vised to such devisee shall descend to the heirs of the testator.” Under these provisions, a devise lapses by neglect to cause a known will to be offered for or admitted to probate, but not for neglect in causing a copy of a probated will to be recorded in the county where the devised property may be situated. The plaintiffs below were not within these provisions for two reasons: 1. The will was offered for and admitted to probate in the court having jurisdiction in the matter within three years from the death of the testator. 2. It is not shown that the plaintiffs below had knowledge of the existence of the will, and had the same in their power to control, for a term of three years before the record thereof was made in Pickaway county. 4. It is next claimed that the 'title of the defendant below is protected by the act of March 20, 1849 (47 Ohio L. 32), the 4th section of which provides as follows : “ The title of any purchaser of any lands situated in this state derived from the heirs of any person not a resident of this state at the time of his death, shall not be defeated by the production of the will of such decedent, unless such will shall be admitted to probate and record in the county where the land-shall be situated, within two years from the death of the testator.” The policy of protecting purchasers from the heirs of non-residents against an unrecorded will, thus inaugurated in 1849, has been continued with some modifications. Thus, the time limited for admitting foreign wills to record in the county where the land devised was situated, under the act of March 17,1851, commenced runningfrom the date of -the probate of the will. And again, by the act of May 3, 1852, section 52, which is still in force, the title of the devisee prevails over that of the purchaser from the heir, if the will be offered for record in the state within four years from final probate. But all acquired rights were unaffected by the modifications. Now, it is claimed by counsel for defendants in errror — 394 — that the provisions referred to, in each of these statutes, were intended to apply only to wills executed subsequent to the passage of the act; and further, if otherwise intended, they can not operate constitutionally upon wills executed previous to the enactment. We do not fully concur in either of these views. It is true, the terms “ shall be admitted,” etc., relate only to a future event; but the event referred to is the admission of the will to record, and not its execution. While, therefore, these enactments were not intended to affect foreign wills already on record in this state, and under which the rights of devisees had vested, although such wills were admitted to record after a period from the death of the testator, or the final probate of the will, longer than that named in the statutes, they were nevertheless intended to operate as to wills previously executed but not then of record in this state. Such operation is not obnoxious to the objection that vested rights are overthrown; for at no time in the history of this state, did rights, under a foreign will, vest in the devisee until such will was admitted to record in this state, although, upon record being made, the will, by relation, operated as from the death of the testator. The true intent of these enactments was, and their effect is, to protect a bona fide purchaser from the heirs of the testator, under the circumstances named, against the claims of devisees, whether the will afterward produced was executed before or after the date of the statutes respectively.; but no protection for such purchaser was intended as against the claim of devisees under a will already on record in this state in pursuance of law. It is therefore clear that the plaintiffs below were not affected by any of these enactments, as the will under which they claim had been admitted to record in this state before the passage of the act of 1849. 5. This brings us to consider the effect of the admission of this will to record in 1846, in Clinton county, where a part of the lands disposed of by the will was situated. This record was made in conformity with the provisions — 395 — of section 28 of the wills act of 1840, which reads as follows : “ 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 court of common pleas of any county in this state where any part of such property may ■ be situated; aud such authenticated copies so recorded shall have the same validity in the law as wills made in this state in conformity with the laws thereof, are declared to have.” The general policy here declared was not inaugurated by this section. Long before the act of 1824, foreign wills, under certain restrictions, were made effectual to pass property in this state, and such policy has never been interrupted. The repeal of one statute on the subject has been, simultaneous with the enactment of another declaring the same general policy. The question then arises, what validity in law would this will have had, if it had been a will made in this state in conformity to the laws thereof, and probated in Clinton county in the year 1846 ? The first section of the wills act of 1840 provided that any person, etc., having an interest or estate in lands, etc., may give and devise the same to any person by last will and testament, etc. The 21st section provided that, if no person interested shall, within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding, etc. Upon the probate of a domestic will, the title of the devisee becomes vested immediately, and, by relation, as of the date of the death of the testator, whether the lands devised be situate in the county wherein the will is probated or in another county .of the state. It is true that provision is made for recording a copy of the will and the order of probate in other counties where lands devised by the will are situate; but the recording in such other counties is not made a condition upon which the-estate of the devisee vests, nor does the failure to record — 396 — sucli copy and order of probate in any case defeat the title of the devisee. The only cause for which the statute defeats the estate of a devisee under a domestic will, is his own neglect to offer it for probate within three years after knowledge of its existence, as prescribed in section 34, as above stated. It follows, therefore, that the title of the plaintiffs below, which became absolute in 1846, upon the admission of the will to record in Clinton county, has not been defeated by the act of 1849 or its subsequent modifications. 6. It is claimed, however, as we understand counsel for plaintiff’ in error, that a record in this state of an authenticated copy of this will could only be made in conformity to the act of 1824, which was in force at the death of the testator; and that under that statute (sec. 12), a foreign will operated as a valid disposition of property situated in the county wherein the authenticated copy was admitted to record, and not of property situated elsewhere. The act of 1824 had been repealed and the act of 1840 was in foi’ce when the record was made in Clinton county, and we think it is quite clear that the statute in force when the record was made, and not the statute in force when the will was executed, controls the effect to be given to the record of an authenticated copy of a foreign will. It only remains, therefore, to inquire whether the act of 1840 authorized the recording of an authenticated copy of a foreign will executed and proved before its passage. Section 28 of this act clearly authorizes such record to be made without regard to the time when the will was made or proved; and declares that when such record is made in any county in this state wherein any part of the property disposed of in the will shall be situated, such authenticated copy shall have the same validity in law as wills made in this state in conformity with the laws thereof. 7. Was the record in the probate court of Pickaway county, made after the commencement of the original action, admissible in evidence in support of the plaintiffs’ title ? The making of such record was not expressly authorized — 397 — Dy statute until the passage of the-act of 1852. By the 26th section of that act, it is provided that when an authenticated copy of a will, executed and proved according to the laws of a sister state, “ has been or shall hereafter be admitted to record in the probate court of any county in this state where any part of such” (devised) “ 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 judge 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.” This provision does not create or vest in the devisees under such will any estate or right of property; it merely provides an instrument of evidence whereby pre-existing rights may be established ; and it matters not whether the record so made and offered in evidence was made before or after the action, in which it is offered, was commenced. Poole v. Fleeger, 11 Pet. 185. 8. There remains to be disposed of certain questions arising under the statute of limitations, which deserve a brief consideration. The right of possession of the estate in remainder, created and vested in the plaintiff's below, under their grandfather’s will, did not accrue to them until the death of their mother, Dicey K. Quarles. Her death took place in the year 1860, so that the statutory period of limitations of twenty-one years had not elapsed from the death o'f Mrs. Quarles until the original action was commenced in 1868. It is agreed, however, that the defendant below and his grahtor, Allen, “have been in the quiet and peaceable possession of the premises ever since the 18th day of May, 1840, without any notice of the claims of the plaintiff's.” We understand “the qrriet and peaceable possession” of the defendant and his grantor to have been “an actual” possession under a claim of absolute ownership. — 398 — Upon these facts it is claimed : 1. That the possession of the defendant and his predecessor, Allen, was adverse to the plaintiffs, and had ripened into a perfect title, whether right of entry had accrued to them or not, more than twenty-one years before the action was commenced. 2. If the time of the statute did not commence to run against the plaintiffs before a right of entry had accrued, it is claimed such right of entry accrued to them on the 18th of May, 1840. 1. In our opinion the statute did not commence running against the plaintiffs until a right of entry accrued to them. If the plaintiffs, and those from whom they derived title, failed to bring their action against the defendant within twenty-one years from the time an action might have been prosecuted against the defendant or his grantor, the defendant’s title under the statute is perfect, otherwise it is not. The plaintiffs did not derive their title from Mrs. Quarles or from her trustees, but did derive it, as purchasers, directly from their grandfather. They had no interest in the life estate, which preceded their estate in remainder, and no control over the premises during its continuance, and therefore the owner or owners of the life estate could not, in the nature of things, dispossess them or hold adversely to them during the continuance of the life estate, within the meaning of the statute of limitations. 17 Ohio St. 374. 2. The theory upon which it is claimed that a right of entry accrued to the plaintiffs on the 18th of May, 1840, instead of the date of the death of Mrs. Quarles, is that the life estate of Mrs. Quarles was forfeited by her deed in fee simple to Allen of that date, and thereupon the right to enter accrued immediately to the remaindermen. Several answers may be made to this claim: 1. This doctrine of the common law, which had its origin and reason in the fendal system, has never, as far as we know, been recognized in this state, nor do we think there is any good reason for maintaining it under our system. 4 Kent Com. 83, 84; 3 Dallas, 486; 1 B. Mon. 88; 11 Conn. 553; 40 Maine, 528. — 399 — 2. This claim assumes that Mrs. Quarles was in her estate under the will of the father and not as heir, but it overlooks the fact that the will vested this life estate in trustees for her benefit, so that Mrs. Quarles could not' convey even the life estate so as to defeat the estate of the trustees. 3. The defendant having fully enjoyed the life estate under the conveyance, can not now insist on the forfeiture to the prejudice of the remaindermen. We find no error in this record; therefore the judgment below must be affirmed.