Pratt v. Hargreaves

Terral, J., delivered the opinion of the court. George K. Pratt filed his petition to the August term, 1899, of the chancery court of Harrison county, seeking the probate of the last will and testament of Mrs. Louisa J. Bidwell, deceased. From the petition demurred to, it appears that Mrs. Bidwell departed this life on the 16th day of May, 1897, at her place of fixed residence in Harrison county, this state; that on the 4th day of June, 1890, Mrs. Bidwell, being* of sound and disposing mind and over the age of twenty-one years, executed her last will and testament in the presence of four subscribing witnesses thereto; that said will was executed by Mrs. Bidwell in the city of New Orleans, where she was then domiciled; that said will was made in the form, as termed by the laws of Louisiana, of a nuncupative will by notarial act — that is, it was written out at length on the records of the notarial acts of George 0. Proot, a notary of said city of New Orleans, .and was subscribed by said testatrix, and by said Proot and three other credible witnesses ; that by the laws of the state of Louisiana said will of Mrs. Bidwell, from its manner of [897] execution, became a public record of said state, irremovable therefrom, for any purpose, and that, being unable to obtain said original will, the petitioner files with his petition a copy of said will duly authenticated by said George C. Proot, for the probate thereof; and that Bella P. Hargreaves and Agnes E. Carey, of the state of Texas and as the heirs of Mrs. Bidwell, have filed a caveat against the probate of said will. It further appears that Mrs. Bidwell at her death was the owner of real and personal property in said Harrison county, and that said George TL Pratt is named as executor of said will. The petition prayed that the last will and testament of Mrs. Bidwell as contained in the notarial acts of said George C. Proot, of which an authenticated copy is filed with said petition, be established and declared the last will and testament of •Mrs. Louisa J. Bidwell. Bella P. Hargreaves and Agnes E. Carey, the heirs of Mrs. Bidwell, demurred to said petition. The demurrer was sustained and the petition was dismissed. The petitioner, George K. Pratt, appeals. The decision of the chancery court is sustained, as it is claimed by the contestant, upon the consideration, that if the will of Mrs. Bidwell of June 4, 1890, was a valid will, it was revoked by the removal of Mrs. Bidwell to Mississippi and by her becoming domiciled here; or, secondly, if still valid, it cannot be probated in the chancery court of Harrison county unless the original will be brought into the court and be there filed as a permanent record thereof. And it is admitted that by the laws of Louisiana this cannot be done. It would be mere conjecture for us to suppose that Mrs. Bid-well knew that her notarial will before Proot could not be proven in Mississippi, or that she intended, by removing to Mississippi, to revoke that will. Certainly Mrs. Bidwell might have revoked her notarial will at any time she had chosen so to do, but we cannot regard the making of her domicile in Mississippi as evidence of that intention. [898] Nor can we suppose that the inability of the proponent to produce the original will in the chancery court of Harrison county can affect the question of the probate of it, under the circumstances of this case. There is abundant authority, as the learned counsel for contestant admit, that if an original will cannot be produced in court because it is lost or destroyed, that such accident would not stand in the way of the court in proving by seendary evidence its execution and contents, and of establishing the will so lost or destroyed. .And if a lost or destroyed will may be established by secondary evidence of its execution and contents, we see no good reason why a will in the situation of the one before the court may not be proven and established. A commission with letters rogatory was sent to a notary in the city of New Orleans, and the commission has been executed, and there appears no difficulty in making due proof of the execution of the will, of which an authenticated copy is filed with the application for the probate of the will. But the action of the court proceeds not upon the ground that no- sufficient proof could be made of the execution of the will, but upon the ground that the rules of law do not allow of any proof in the case unless the original paper be brought before the court. Unless there be immovable property of Airs. Bidwell in Louisiana affected by this will, it is a singular law of our sister state that keeps this document there where it can effect no good; but it would be more singular if the laws of Mississippi should permit the laws of another staite to render ineffectual the just rights of the citizens of Mississippi. If a resident of Louisiana had possession of the will and refused to give it up, we doubt not that proof of the document would be admitted here by secondary evidence of its contents whenever such proof should be necessary to: protect the rights of our citizens. Like proof should be admitted when the laws of a state intervene to shut off the production of the best evidence. [899] Tbe domiciliation of Mrs. Bidwell in Harrison county at ber death makes it necessary that her will be probated in said county both as to all her personal property, which is governed in the distribution by the laws of the state of the last domicile, and also as to all her real estate in Mississippi, and unless so probated, it becomes a useless document as to all her personal estate everywhere, and also as to all her real estate in Mississippi. It is a maxim that every right has its remedy; but a right out of possession is worthless unless evidence may be had to establish it. Here we have a right, and the evidence to support it, but the question is whether the law furnishes a method of applying the evidence in support of the right. In the matter of Catherine Roberts’ will and codicil, 8 Paige’s Ch. Rep., an authenticated copy of the will of Catherine Roberts was established in the state of New York as her will, the. original being in the island of Cuba, and required to be kept there by Spanish laws. In Maun v. Hefferman, 13 Johns., 58, it was held that a notarial copy of a contract was admissible in evidence, the original being in the possession of a notary out of the jurisdiction of the court. In Alvion v. Furnival, 1 Co. M. & Ros., 272, it is held that an agreement of reference, made in France, was sufficiently proved by an examined copy and the evidence of the attesting witness, it appearing that the original was deposited with a notary at Paris for safe custody, and that it is the established usage in France not to allow the removal of a document so deposited. In Lunday v. Thomas, 26 Ga., it is said: “When a paper is beyond the jurisdiction of the court, verbal evidence of its contents is admissible.” In Burney v. Russell, 109 Mass., a copy of a document which the. witness refused to annex to his deposition was admitted in evidence. Same principle is held in Burton v. Driggs, 20 Wall., [900] 133; Burnheimer v. Wood, 8 N. H., 334; Beattie v. Hilliard, 55 N. H., 428; Moody v. Corn, 4 Met. (Ky.), 1. We think that the action of the court in sustaining the demurrer to the petition filed in this case is erroneous. The said decree or order is- reversed, the demurrer is overruled and the case is remanded to the chancery couH of Harrison county for further proceedings.