Bate v. Incisa

Campbell, J., delivered the opinion of the court. The domicile of the testatrix was in Mississippi, and the [518] probate of her will in Tennessee did not authorize an authenticated copy of it to be admitted to probate in the Chancery Court of Washington County, in pursuance of § 1105 of the Code of 1871. That statute does not embrace the case of a will whose maker is domiciled in this State, although executed out of the State, and operating on property in another State, as well as on some in this State, and although the testator dies in the jurisdiction in which the will is admitted to probate. In Sturdivant v. Neill, 27 Miss. 157, and Morris v. Morris, 27 Miss. 847, it was declared that the statute cited had “ no application to wills made by citizens domiciled in this State, but only to wills made according to the laws of some other State or country,” and that the probate by a court of another State of the will of one domiciled in Mississippi, but made in the State which admitted the will to probate, and where the testator died, was a nullity in this State, because of the want of jurisdiction in the court of such other State. In Wells v. Wells, 35 Miss. 638, the court held that the probate in Louisiana of the will of • a testator who died there, and whose domicile was in Mississippi, was valid as to his property situated in Louisiana. In Still v. Woodville, 38 Miss. 646, it was held that the proper court of this State had jurisdiction to admit to probate, in the first instance, the will of a person domiciled in another State when he died, if he had property situated in this State. There is harmony between these several decisions, and each is correct. In Crusoe v. Butler, 36 Miss. 150, it was held that the will of one domiciled in Alabama, and purporting to have been attested by three witnesses, and which had been duly proved in Alabama, was properly admitted to probate in the Probate Court of Lowndes County of this State, and was effectual as to lands lying in this State, although the authenticated copy from Alabama showed that the will had been proved there by but one of the three subscribing witnesses. This decision was placed on two grounds, viz.: 1. As the record stated that the will was duly proved by one witness, and was admitted to probate, and it did “ not affirmatively appear that that witness proved only the attestation by himself and execution in his presence, it will be presumed that he testified to every fact necessary to due exe [519] cution; ” 2. The copy of the will had been “ ordered to be admitted to probate, and recorded ” in the Probate Court of Lowndes County, and as that act was within its jurisdiction, it was declared unassailable collaterally, even if the court adjudged erroneously as to the sufficiency of the probate in Alabama. The will in that case was such as the statute had in view in providing for admitting to probate in this State an authenticated copy, i. e., the will of one not domiciled in this State, but “ touching or disposing of estate within this State,” and which had been proved according to the laws of another State or country. In the case we are now considering, the will is not such as the statute was passed for. The Chancery Court of Washington County did not have jurisdiction over an authenticated copy of it, but could only admit to probate the original will; and the presumption that the witness who proved the will in the County Court in Tennessee testified to every fact necessary to due execution of the will to pass real estate in Mississippi, cannot be indulged, in view of the fact that the law of Tennessee requires but two witnesses to a will of land; and, although this will appears to have been attested by three subscribing witnesses, as the law of Tennessee required only two, the statement of the record, that it was duly proved by one cannot be taken to import more than that it was duly proved according to the requirement of the law of that State, that is,, that it was proved to have been attested by two witnesses, which was not sufficient to satisfy the law of this State at the time when this will was made. But, if the record of the probate of the will in Tennessee had shown that it was duly proved by the three attesting witnesses, an authenticated copy could not have been admitted to probate here, because the statute does not embrace it. The conclusion that § 1105 of the Code of 1871 did not apply to the wills of persons domiciled in this State is an end of the controversy, and we have called attention to the cases in our reports for the purpose of showing that this conclusion is properly deducible from them, and is not inconsistent with the doctrine of any of them. This will was provable in Tennessee, whose courts had jurisdiction of it as affecting property situated in that State; but [520] the domicile of the testatrix being in Mississippi, her will must be proved here according to our law, in order to be operative on property situated in this State. We think it clear that the testatrix had her domicile in this State, as shown by the bill. It avers that the complainant and his wife (the testatrix), from the time of their marriage, some years before, made their home on the wife’s plantation in Washington County, Mississippi, until the year 1871, when in May of said year, she died at Memphis, Tennessee, having previously made her will. Although the husband was a subject of the kingdom of Italy, and that was his national domicile, he and his wife made their home in Mississippi, which was their domicile for the purpose of succession. The will under which the appellee claims an interest in the land sought to be partitioned must be proved in the proper court of this State before his claim can be recognized here. Decree reversed.