Kirkland v. Calhoun.

the contestants, motion was made on behalf of the executor for peremptory instructions in favor of the will upon the two grounds: First, that the judgment of the Surrogate Court of New York, upon the testamentary capacity of the testatrix, was conclusive, and, second, that there was no evidence of unsoundness of mind. The court sustained the first ground of the motion, overruling the second ground, and there was verdict and judgment sustaining the will. Appeal was taken to the court of civil appeals, in which court, upon the question of the conclusiveness of the foreign probate, the judgment of the circuit court was reversed and the case comes here upon petitions for certiorari, the executor assigning error to the action stated, and the contestants bringing forward an assignment that the executor was precluded from relying upon the judg ment of the New York courts, for the reason that such defense was not presented in the county court and not until the second hearing in the circuit court.

We think there was no error in the holding of the court of civil appeals that the adjudication of the courts of New York, upon the question of the validity of the will there probated, was not conclusive nor binding upon the courts of this State, in so far as the devolution of real estate here situated is concerned.

It is to be noted that no question is made, nor could there upon reason be, with reference to personal property of the testatrix or real property situated in the State of New York. As to the former, legally following, as it does, the person of the owner, there can be no dispute that its disposition must follow and be in accordance with the law of the testatrix's domicile at the time of her death

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and the decree of the court of such domicile, admitting the will to probate, is, both by comity and federal treatise, conclusive in other jurisdictions. Williams v. Saunders, 5 Cold., 60; Martin v. Stovall, 103 Tenn., 1, 52 S. W., 296, 48 L. R. A., 130.

With respect to real estate, it is conceded by counsel that compliance with the forms, requirements, and solemnities prescribed by the law of a State for the conveyance or devise of real property within its borders is essential for the valid transfer of such property, and that the laws of, or judgments of, the courts of foreign jurisdiction not in conformity to the lex situs can have no application, but it is insisted that a foreign adjudication of testamentary capacity to dispose of lands situated in this State is conclusive and binding and cannot be relitigated in our courts. That there is some conflict in the authorities from other jurisdictions upon the question here made is shown by the annotations to the following cases, State of Montana ex rel. v. District Court of the Twelfth District et al., 34 Mont., 96, 85 Pac., 866, 6 L. R. A. (N. S.), 617, 115 Am. St. Rep., 510, 9 Ann. Cas., 418: Selle v. Rapp, 143 Ark., 192, 220 S. W., 662, 13 A. L. R., 494, but the decided weight of authority, and in our opinion the better reasoning, is in accord with the rule announced by our decisions, that as to questions of the disposition of immovable property by will the ultimate determination of testamentary capacity, as well as of formal requisites, lies in the courts of the State where the property is sit uated. Williams v. Saunders, 45 Tenn (5 Cold.), 60; Carpenter v. Bell, 96 Tenn., 294, 34 S. W., 209; Martin V. Stovall, 103 Tenn., 1, 52 S. W., 296, 48 L. R. A., 130; Pritchard no Wills, section 56, pp. 61, 62; Caruthers, History of a Lawsuit (3d Ed.), section 619.

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"That this rule must obtain for the proper mainteance of the State's sovereignty over lands within its borders in the orderly transfer and secure holding thereof is obvious, for testamentary capacity is one of the necessary links in the chain of title to realty, and it is only by observance of the rule that this important function of government is rendered immune from foreign interference or substitution of authority. Restrictions upon the power of testamentary disposition of real property, as well as dif fering requirements as to the formal execution of the power, exist in certain jurisdictions according to the policy or statutes of the several States, and to subject realty in one State to the operation of such varying restrictions of others could not, in keeping with territorial sovereignty, be permitted.”

It is, of course, clear that the State may by statutory enactment afford conclusiveness to foreign probate judgments or decrees, and such legislation is the basis of some of the decisions urged in support of the contention of the executor. We have in Tennessee no such legislation; on the contrary, our statutes on the subject have been uniformly construed as declaratory of the common-law application of the lex domicilii in the testamentary disposition of personal property and the lex situs in the case of immovable or real property. Such was the construction placed upon chapter 31 of the Acts of 1823, Code, section 3922, by the decision in Williams v. Saunders, supra, and which has been adhered to in all subsequent decisions upon the subject. So also by chapter 497 of the Acts of 1903, with respect to wills executed in accordance with the laws of countries other than the United States; and by

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chapter 87 of the Acts of 1909, with respect to the probate of foreign wills, supplementing the act of 1823, the rule announced is clearly maintained. In view of the rule and policy adopted, the full faith and credit clause of the Federal Constitution and the act of Congress effective thereof can have no application; those necessary and wholesome safeguards of the judgments of the courts of the several States were not intended to, nor can they, have the effect of extending the control or jurisdiction of the courts of one State over the territory embraced within the boundaries of another. As stated in Dibble v. Winter, 247 Ill., 243, 93 N. E., 145:

"The courts of one State are without jurisdiction over the titles of land in another State. A local statute has no extraterritorial force, and can be exercised only upon persons and property within the jurisdiction of the State where such statute is enacted. The law of the State where the real estate is situated governs exclusively. The probate of a will in one State, though conclusive as to personalty, if made at the testator's domicile, can have its only force in establishing the devise of lands in another State by virtue of some law of the State in which the lands are located. This doctrine is consistent with the clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State."

See, also, Keith v. Keith, 97 Mo., 223, 10 S. W., 597; Evansville Ice & Cold Storage Co. v. Winsor, 148 Ind., 682, 48 N. E., 592; Nelson v. Potter, 50 N. J. Law, 324, 15 Atl., 375; Hines v. Hines, 243 Mo., 480, 147 S. W., 774; Bowen v. Johnson, 5 R. I., 112, 73 Am. Dec., 49.

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The decisions of the supreme court of the United States are in accord with the conclusions reached with respect to the constitutional provisions sought to be invoked. Robertson v. Pickrell, 109 U. S., 608, 3 Sup. Ct., 407, 27 L. Ed., 1049; McCormick v. Sullivant, 23 U. S. (10 Wheat.), 192, 6 L. Ed., 300; Darby v. Mayer, 23 U. S. (10 Wheat.), 465, 6 L. Ed., 367. It is sought by counsel to restrict the principle of the foregoing decisions to the matter of the execution of a will in conformity to the lex situs, but in our opinion, for the reasons above stated, the same applies with equal force to the question of testamentary capacity.

It is argued that the probate of the will in the State of New York was an action in rem, and that therefore the judgment is binding upon all the contestants here. Probate proceedings are recognized as actions in rem, and the will itself is the thing inquired into, but the validity of the will depends upon the adjudication of the capacity of the testatrix to dispose of lands in Tennessee, which we hold must be determined by our laws and cannot be concluded by a foreign decree. Judgments in rem, to be effective and binding, must proceed out of courts of competent and conclusive jurisdiction; thus, as pointed out, it is universally held that the probate of wills of personalty in the domicile of the testator cannot be elsewhere attacked because of the conclusive jurisdiction of the domiciliary courts; all persons interested must have their claims there presented. But to hold, in cases as the present, that contestants of a foreign will devising local lands, even with actual notice of probate proceedings in the foreign court, must become parties and have there determined the validity of the will, would be to nullify our