Lessee of Heirs v. Blackman

*Grimke, J., delivered the opinion of the court: The question to be decided resolves itself into another of still greater importance; and that is, whether the probate of a will affects the realty; for, if it does have this effect, it will be very difficult to escape the conclusion, that the sentence of the probate •court, whether it be one of acceptance or rejection, is indispensable to give validity to the will, and that it is conclusive upon the matter which it professes to decide. In England, a will of personal property need not be attested by any witness, though it is now proposed, among other changes of judicial reform in that country, to make the attestation of two witnesses necessary to wills cf real and personal property. The ecclesiastical court has exclusive jurisdiction of a will of personalty. It is proved in the common form by the executor, who deposes that it is the last will of the testator. If a mixed will, containing a disposition of both real and personal property,-is there offered for probate, the proof is the same, and the probate only affects the personalty. So far as regards that, the probate, while unrepealed, is conclusive; the validity of the will can not even be tried by a jury; though it is now also proposed in that country to submit the will to be tried on the issue of devastavit vel non, in analogy to a will of land. In Ohio the law is very different. The statute of 1824, which [15] was in force at the time this will was executed, rendered the attestation of two witnesses necessary to both species of will, and .also required that both should be submitted to probate. .It declares that the executor, etc., may cause the will to be brought before the court of common pleas; and “ may” means “ must,” in all those cases where the public are interested, or where a matter of public policy, and not merely of private right, is involved. Our law, then, declares that where personal or real property is devised, the will must be offered for probate. It does not confine the proof to a will of personalty, as it would have done if it had not intended to depart from the English law, and to introduce a new rule into Ohio. In England the ecclesiastical courts have, from time immemorial, entertained jurisdiction only of personal bequests ; and it is for that reason, that on the trial of an ejectment in that country, a will of land is treated as a deed, and must be proved in the same way. The only exception is, that where the original will is lost, the probate then becomes evidence. When a will of real property is offered for probate, in Ohio, a sentence of some kind is pronounced upon it; the proof is declared *to be sufficient or insufficient; in the one case it is accepted, in the other rejected. If it is rejected, it may still be re-propounded for probate; and if it is received, it may still, within a prescribed time, be impeached by the verdict of a jury, and a consequent decree in chancery. Can the sentence be questioned collaterally? If it can, it will afford the example of an open inconsistency with the general genius of our jurisprudence. No maxim is better settled than that the judgment, unreversed, of a court of competent jurisdiction, is conclusive. The rule is even stronger in relation to a court of probate than it is to a common law court. In the last, the judgment is binding upon parties and privies only; in the first, it is obligatory upon all the world; a distinction which has been recognized in a great variety of forms, in determinations made in our own country. 6 Ohio, 255 ; 11 S. & R. 428. By our law, a particular tribunal is appointed to receive probate of a will. It does not signify that it is not by name a court of probate, that it is the court of common pleas, with a-probate side to it. The same court has jurisdiction of both chancery and common law controversies; and yet, this mixture of powers would not avail as an argument to prove that its equity jurisdiction was [16] different in kind from that of the courts of chancery in. England or South Carolina. I am aware that the decisions in the other states, upon the precise matter which we are now considering, are by no means uniform, a. fact which may be accounted for either from some peculiarity in their statutes, or which is more probable, from the difficulty which the mind has felt of renouncing English adjudications as to the different effect of the probate upon real and personal property, even after the introduction of a new law upon the subject. In Pennsylvania, the probate is prima facie evidence on the trial of an ejectment. 5 S. & R. 212 ; 10 S. & R. 84. In Massachusetts, it. is conclusive. 16 Mass. 433. And I should judge, from comparing the two cases in 14 Johns. 407, and 12 Johns. 192, that the probate in New York was treated as onl j prima facie evidence; for, in the one case, parol evidence was resorted to, and would have been received if it had been sufficient; in the other, the probate-constituted the only evidence. If the sentence of the court, upon the validity of a will of land, were permitted to be re-examined and controverted on every trial, in which some one of the devises in it constituted a part of the-title, it would produce great confusion and mischief. It would be difficult to say when a will should be considered as established. *The finding of a jury, in a collateral suit, that it was the-will of the testator, after it had been rejected by the appropriate tribunal, would present a case of irreconcilable conflict between two ■opposite determinations, and if a verdict should also (as it necessarily must) have the power of annulling the will, after it has been established, it ought, also, to draw after it the further consequence of declaring the grant of administration illegal; and yet it could not have this effect without confounding every idea of stability in the administration of the law, and permitting one tribunal to usurp the acknowledged authority of another. The will would at one and the same time be a valid and an invalid will, and public confidence in the probate coart would be greatly shaken, if not entirely destroyed. These are mischiefs for which no compensation could be found in the uncertainty and confusion, in which all private rights would be involved. The case of deeds is very different from that of wills. The law ' has not appointed any judicial tribunal to hear proof of the former, and to establish their validity. The reason is, because-the17 former do not draw after them such a train of consequences as the last, the grant of administration, the rights of creditors, etc., all of which it is indispensable to settle immediately on the death of the testator, and which are so indissolubly connected with the fact of the validity of the will, that the sentence of some tribunal appears to be necessary, in the first instance, either to establish orto reject it. There is a difference between the acts of 1808 and 1824. Tho former contains a clause which is omitted in the latter, and which declares that no written will should be valid till probate was had. But if every alteration in the law were to authorize new views and new rules, there never would be any certainty. It is very common in framing new statutes to omit clauses which were contained in antecedent ones, merely because they were unnecessary and superfluous; and that such was the intention in the act of 1824 is, I think, manifest. Therefore, until this will is established in the probate court, it can not be admitted in evidence.