Calloway v. Cooley

The opinion of the court was delivered by Johnston, J.: The validity of the judgment is to be determined from the findings, as none of the testimony has been preserved. From them it appears that the title of the [752] land in controversy was in James Calloway, who died in North Carolina, and the executor of his will, who was vested with full power, sold the land in good faith and for a reasonable price, and accounted for the proceeds of the sale to the estate and heirs of the deceased. The Calloway heirs, without tendering or offering to restore the purchase price of the land, or any part of it, have brought this action to recover the land, contending that the sale was irregular and unauthorized. The will was executed and proved in North Carolina, and the executor, in pursuance of the authority conferred by chapter 102 of the Laws of 1879, brought a copy of it to Kansas and presented it for record in the probate court of Lyon county, where the land was situate. That court determined that it was a duly-authenticated copy of the will which had been executed, proved and admitted to probate according to the laws of North Carolina; that the authentication was in due form of law and entitled to full faith and credit; and, having found these facts, admitted it to record. The plaintiffs contest both the applicability and the validity of the statute mentioned, under which the foreign executor derived authority to sell the land. (Gen. Stat. of 1889, ¶2932.) It is claimed to be inapplicable, because it was enacted after the will had been executed and proved. It provides: “Whenever, in any will, which heretofore has been or hereafter shall be executed and proved in any state or territory of the United States, power is given to the executor or administrator with the will annexed to sell or convey real estate of the testator, any executor of such will or administrator with the will annexed of the estate of the testator, duly appointed and qualified in any state or territory of the United States in which such will shall have been executed and proved, may sell,” etc. Counsel for plaintiffs in error contend that “the obvious intent of the legislature was to make the statute operative as to wills already executed but which had not yet taken effect through the demise of the testator and the proving of the will, but not to wills where the testator was already dead, and his will had taken effect by being proved according to [753] law, and all property rights thereunder, or that had passed by descent, had vested. The statute is to be read, ‘which heretofore has been or hereafter shall be executed, and proved/ and not ‘executed and proved.” The language of the statute appears to us to be so plain, and the intention of the legislature so obvious, that there is little room left for interpretation. It is clear that it was intended to apply to all wills which had been executed and proved prior to its enactment, as well as to those which were executed and proved afterwards, and fairly covers the will in controversy. It is contended that the statute is obnoxious to § 16 of article 2 of the constitution, because the subject of the act is not clearly expressed in its title. The title is: “An act to authorize foreign executors and administrators with the will annexed to convey real estate in pursuance of power contained in the will." It is said that the act relates to executors and administrators in other of the states and territories of the United States, while the title indicates executors and administrators of other nations. The word “foreign" is frequently used as the opposite of “domestic." In the statutes and decisions, the judgments and wills of other states are generally spoken of as foreign judgments and wills. This was the sense in which it was used by the legislature, and as it will admit of a meaning such as was given it by the legislature, and broad enough to include the provisions of the act, it cannot be held invalid. (In re Pinkney, 47 Kas. 89.) It is argued that it is obnoxious to § 17 of article 2 of the constitution, but we find nothing substantial in the claim, nor in any of the other objections made to the validity of the statute. It is next contended that the authentication of the will was insufficient, and that therefore the plaintiffs' motion for judgment on the findings should have been allowed. The authentication appears to be substantially correct, but its sufficiency having already been adjudged by a competent tribunal, it is not before us for decision. It appears from the findings that an application was made in the probate court of Lyon county [754] by the executor to have a copy of the will admitted to record in that court, and, upon a hearing duly had, it was found that the will presented was a duly-authenticated copy of the will of James Calloway, deceased; that it had been executed, proved and admitted to probate according to the laws of North Carolina, and that the authentication thereof is in due form of law; it was further found, that the will related to property in Lyon county, Kansas; and upon these findings an order was made that the authenticated copy of the will be admitted to record in that court and duly recorded. The probate court is vested with full power to inquire into the sufficiency of the authentication and to ascertain whether, under the proof offered, the will should be admitted to record. Being vested with jurisdiction, its finding and determination are final, unless corrected upon appeal or proceedings in error, and are not subject to collateral attack. The statutes provide that the existence of certain facts are necessary before a will executed and proved in another state can be admitted to record in this state. One of the requisite fais, that the copy of such will presented for record shall be duly authenticated. This fact is to be determined upon proof, and the authority to determine it is conferred upon the probate court. (Gen. Stat. 1889, ¶¶ 2932, 7228.) Anything indicating a contrary view in Gemmell v. Wilson, 40 Kas. 764, is not controlling, as in that case the existence of the requisite facts for admission to the record were conceded. Under the statutes, these requisite facts must be determined' by the probate court; and it having exercised the jurisdiction, its determination, although it may have been erroneous, is conclusive upon all interested parties and all courts, until it is reversed or reviewed in some appropriate proceeding. (Stanley v. Morse, 26 Iowa, 454; Roberts v. Flanagan, 32 N. W. Rep. 563); Loring v. Arnold, 8 Atl. Rep. 335; In re Shoenberger’s Estate, 20 id. 1050; Goldtree v. McAlister, 23 Pac. Rep. 208; Dickey v.Vann, 8 South. Rep. 195; Holmes v. Railroad Co., 9 Fed. Rep. 229. See, also, Howbert v. Heyle, 47 Kas. 58; Higgins v. Reed, 48 id. 272.) A duly-authenticated copy of [755] the will having been properly admitted to record, the executor was authorized to sell the property in controversy, and to confer a good title upon the purchaser. We are clearly of opinion that the purchaser from the executor acquired a good title, and that the plaintiffs in error suffered no injustice by reason of the conveyance. The judgment of the district court will be affirmed. Horton, C. J., concurring. Allen, J., not sitting.