Bate v. Incisa

1. Will. Foreign probate. An authenticated copy of the probate in Tennessee of a will whose maker is domiciled in Mississippi, is not admissible to probate in this State, under Code 1871, § 1105, so as to operate on property here, although executed in the foreign jurisdiction, where the testatrix died, and where it operates on her property there situated. 2. Same. Domicile. If a subject of the kingdom of Italy and his wife, from the time of their marriage until she dies in another State, make their home on her plantation in Mississippi, this State is their domicile in so far that her will must be proved here before his claim under it to property in this State will be recognized by our courts.

Appeal from the Chancery Court of Washington County. Hon. W. G. Phelps, Chancellor. Alberto Incisa, Marquis di Camerana, as a subject of the kingdom of Italy, filed this bill against Henry C. Bate and Joseph and Eugenia Bertinatti, to enforce his claim, under the will of his wife,to Riverside Point, her plantation in Washington County, and alleged that he married Ella Bass, a resident of Mississippi, and daughter of Eugenia Bertinatti, and lived with her on the plantation until 1871, when, in May of that year, she died in Memphis, Tennessee, and her will, which was attested according to the laws of Mississippi, having been probated the following year in Tennessee, a certified copy thereof was afterwards duly probated in the Chancery Court of Washington County, under the statute of this State, the will and all the proceedings in the courts of both States being exhibited with the bill; that, before their marriage, his wife had conveyed a one-third interest in the plantation to her brother, and by the will she devised a third interest to the complainant, and a third in trust for her mother; that Eugenia Bertinatti and hex-husband, Joseph, reside at the Hague, he being the accredited minister to Holland .from the kingdom of Italy, of which he has always been a subject; that the brother died, having made a will by which he devised the whole plaxitation to trustees for his mother’s use, and at her death to Henry C. Bate, which casts a cloud on the complainant’s title ; and that the interest of his deceased brother-ixx-law and of his mother-in-law should be ascertained by partition, and then subjected to his demand for rents which they have collected and consumed without accounting for his one third. There was an appropriate prayer for relief. A demurrer, by Henry C. Bate, the appellant, was overruled, although it assigned among other grounds that the will had never been probated so as to affect the land in this State. argued orally and in writing. The very groundwork of the right to recover in this case is the will of Ella Incisa di Camerana. It is an equitable action of ejectment. This will is an exhibit. It is connected as a part of the chain of title, and is offered as evidence. When we examine the probate of the will, we find it to fall far short of showing those facts required to be proved for the purpose of divesting the title of the heir-at-law. The form of proof of wills is fixed by statute. Code 1871, § 1117; Code 1880, § 1963. These enactments must be followed. Evans v. Evans, 10 S. & M. 402; Raglamd v. Green, 14 S. & M. 194 ; Martin v. Perkins, 56 Miss. 204. The cases of Sturdivant v. Neill, 27 Miss. 157; Morris v. Morris, 27 Miss. 847; Fotheree v. Lawrence, 30 Miss. 416, affirm the well-established doctrine that the will of a resident or domiciled citizen or inhabitant of this State must be executed according to the ceremonies and solemnities of the State of Mississippi. Such is the generally received doctrine. Crusoe v. Butler, 36 Miss. 150 ; Story Confi. Laws, §§ 441, 584. Ella di Camerana was a citizen of Mississippi. Did marrying a foreigner change her domicile, or even her citizenship ? The bill avers that Alberto di Camerana intermarried with Ella Bass. But they made their home on her plantation in this State, and their domicile was here, although she was daughter of Eugenia Bertinatti, a wife of a resident of the Hague. Wills are not evidence in support of title to property until probated in the jurisdiction in which the property is situated at the testator’s death. Wells v. Wells, 35 Miss. 638. The statute relative to authenticated copies of wills refers exclusively to foreign wills. Riley v. Moseley, 44 Miss. 37 ; Wilson v. Cox, 49 Miss. 538. The attempted record in this State of the probate in Tennessee was void. Sturdivant v. Neill, 27 Miss. 157; Morris v. Morris, 27 Miss. 847. The fact that the execution of the will was duly proved in open court by a subscribing witness, and then registered by the clerk on the records of the court, does not establish that the will was legally admitted to probate, and this is all that appears in this case. Stuart v. Siuanzy, 12 S. & M. 684; s. c. 23 Miss. 502; Fotheree v. Lawrence, 30 Miss. 416 ; 1 Redfield on Wills, 405. This case is not affected by the Act of Congress. Dorsey v. Maury, 10 S. & M. 298 ; Crusoe v. Butler, 36 Miss. 150. Laws of Tennessee require that all the witnesses living must be produced to prove the will. Tenn. Code, §§ 2162, 2163, 2168, 2486 a, 2486/, and authorities cited. It is ordinarily considered necessary in courts of common law (in those States in which the probate of a will is not regarded as conclusive in respect to lands) to call only one of the subscribing witnesses, if he can speak to all the circumstances of the attestation, but he must be able to prove all the facts necessary to a full and perfect execution of the will, in order to dispense with the other witnesses, if they are alive and within the jurisdiction. 1 Jarman on Wills, 222. The general rule, where land is involved, is to produce all the witnesses. Evans v. Evms, 10 S. & M. 402; Ragland v. Green, 14 S. & M. 194. There is also a distinction between cases where the moving party seeks to set aside the will, and cases where the moving party is a devisee seeking to establish it; the rule which makes it imperative to call all the witnesses to a will must be considered as applicable in the latter case. 1 Jarman on Wills, 223 ; 6 Wait’s Actions and Defences, 384. This will was admitted to probate in Tennessee in 1872. At that time we had an express provision in the Code of 1871, which cannot be found in the laws prior to 1871, and which section has not been carried forward into the Code of 1880,— we refer the court to § 1117, which requires that all the witnesses to the will must prove it. 1. We concede the general rule to be, that a will must be probated and established according to the law of the testator’s domicile and in the courts of his domicile, and that this is so, though the testator makes his will and dies outside of his domicile. Sturdivant v. Neill, 27 Miss. 157 ; Bailey v. Osborn, 83 Miss. 128. If this rule, however, be rigidly applied here, it would follow that the courts of this country would have no authority to probate the will of Ella Incisa di Camerana, — her domicile, for aught that appears in the bill, being in Italy. Bnt the rule does not apply here, and cannot apply, if we are correct in our view of the law as to the domicile of Ella Incisa after her marriage, for then her will could not be probated in either the State of Tennessee or that of Mississippi. In Still v. Woodville, 38 Miss. 646, it was clearly held that when a decedent was domiciled in Louisiana, but owned property in this State, the courts of this State were bound to take jurisdiction of it, for the benefit of the true owners, and could, therefore, prove wills and admit them to record. It is true that before a will can be admitted in evidence, in support of title to property therein bequeathed, it must be regularly probated in the jurisdiction where the property is situated; and equally true that the probate, in a foreign State, of the will of a testator who died there, but whose domicile was in this State, is ineffectual to devise property situated in this State. Wells v. Wells, 35 Miss. 638. But, in Cameron v. Watson, 40 Miss. 191, it was held that when a married woman, having power to make a will as to real and personal property situated in Arkansas, is domiciled here, and makes a will in pursuance of such form, the will should be probated here, though there is no property on which it could take effect. In Crusoe v. Butler, 36 Miss. 150, the law applicable to this case is fully enunciated. When it appears from the probate of a will that there are three subscribing witnesses, it may be proved by one witness, so as to authorize its probate to pass realty, if the witness examined proves that it was duly attested by the others. If the record of the probate of such a will states that “ it was duly proved by one of the witnesses and admitted to probate,” and it does not affirmatively appear that this witness proved only the attestation by himself and execution in his presence, it will be presumed, in a controversy respecting the title of the real estate thereby devised, that the witness testified to every fact necessary to the due execution of the will to pass real estate, and the probate will be valid as to the realty. The decree of the Chancery Court, allowing the probate of such authenticated copy of a will, cannot be attacked collaterally, but only by a direct proceeding for that purpose. 2. The statute authorizing the probate of authenticated copies of wills proved according to the laws of other States, proceeds on the facts that the execution of the will has been determined by a court having jurisdiction, and whose judgment is based upon the laws of its own country in determining the validity of the will. Stwrdivant v. Neill, 27 Miss. 157 ; Wilson v. Cox, 49 Miss. 538. The statute is very plain : “ Authenticated copies of wills, proved according to the laws of any of the States of the Union, . . . and touching or disposing of estate within this State, may be admitted to probate in the proper court.” Code 1857, p. 435, art. 49. Not until 1880 did our statute expressly authorize the probate of foreign wills, as such. The statutes of Tennessee, where this will was executed and proved, provide that written wills with witnesses thereto, when not contested, shall be proved at least by one of the subscribing witnesses if living; and the courts of that State have given the statute a liberal exposition. Thompson & Stegers’ Code, § 2171; Burroio v. Ragland, 6 Humph. 481, 486; Hodges v. Bauchman, 8 Yerger, 186, 188; Mosely v. Wingo, 7 Lea, 145. We have in this case all the elements required in the deraignment of title. made an oral argument.