Kerr v. Devisees of Moon
22 U.S. 565 (1824)

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U.S. Supreme Court

Kerr v. Devisees of Moon, 22 U.S. 9 Wheat. 565 565 (1824)

Kerr v. Devisees of Moon

22 U.S. (9 Wheat.) 565

APPEAL FROM THE

CIRCUIT COURT OF OHIO

Syllabus

The disposition of real property by deed or will is subject to the laws of the country where it is situated.

Where the devisor was entitled to warrants for land in the Virginia military, district in the State of Ohio under the laws and ordinances of Virginia on account of his military services, and made a will in Kentucky, devising the lands, which was duly proved and registered according to the laws of that state, held that although the title to the land was merely equitable, and that not to any specific tract of land, it could not pass unless by a will proved and registered according to the laws of Ohio.

Even admitting it to have been personal property, a person claiming under a will proved in one state cannot intermeddle with or sue for the effects of a testator in another state unless the will be proved in the latter state or it is permitted by some law of that state.

Letters testamentary give to an executor no authority to sue for the personal estate of his testator out of the jurisdiction of the state by which they were granted.

Under the statute of Ohio which permits wills made in other states concerning property in that state to be proved and recorded in the court of the county where the property lies, it must appear that the requisitions of the statute have been pursued in order to give the will the same validity and effect as if made within the state.

Page 22 U. S. 566

MR. JUSTICE WASHINGTON delivered the opinion of the Court.

The respondents filed their bill in the Circuit Court for the District of Ohio, in which it is stated that Archelaus Moon was, in his lifetime, entitled to warrants for 4,000 acres of land in the Virginia Military district, between the Scioto and Little Miami Rivers in the State of Ohio, under the ordinances and laws of Virginia, on account of his services as a captain in the Virginia Line on continental establishment during the war of the Revolution. That being so entitled, he, on 8 May, 1796, in the County of Fayette in Kentucky, where he resided, duly made and published his last will and testament, which, after his decease in the same year, was proved and admitted to record in the court of that county, an authenticated copy whereof, with the probate annexed, is made an exhibit and referred to as part of the bill. That by this will the testator devised the aforesaid land to the complainants, his widow and children. The bill then sets forth that on 2 January, 1809, four warrants for 1,000 acres

Page 22 U. S. 567

each, were granted to Robert Price assignee of Josiah P. Moon, and George C. Friend, and Martha his wife, formerly Martha Moon, who are described in the assignment as the only children and representatives of Archibald Moon, deceased, which warrants were sometime in the same or the succeeding year assigned by Price to the defendant Kerr, who in March, 1810, made fifteen entries or locations thereon, amounting in the whole to 3,723 acres, leaving 277 acres unlocated. That sometime in the winter of 1811, the complainants gave notice to Kerr of their claim to the said warrants and land and of their intention to prosecute the same personally, in writing and by a publication in a newspaper printed in Chilicothe. That Archelaus and Archibald Moon were the same name and person, and that Josiah P. Moon and Martha Friend were his children by his first wife, and were disinherited by the aforesaid will. That the defendant had notice that the assignment to Price was fraudulent. The bill prays a discovery of the matters so alleged and a decree that the defendant Kerr assign the evidences of title to the said lands to the complainants, and for general relief.

The answer admits that the defendant purchased from Robert Price in September, 1809, four several land warrants, for 1,000 acres each, for which he paid and secured to be paid to said Price the sum of $2,663 That the warrants issued for the military services of Archibald Moon, and that they were assigned to the defendant at the time of his purchase. hat in March, 1810, and at different times thereafter, the defendant

Page 22 U. S. 568

made various entries of land on the said warrants in the Virginia military district, believing his title to said warrants to be unquestionable, and that the lands so located are owned either by the said defendant or by those to whom he had sold them. The defendant denies the notice charged in the bill, except that in the winter of 1811, he saw the publication in which the claim of the complainants was asserted, before which time he had sold a great part of the lands to different persons for a valuable consideration, the principal part of which he had received, and that some of the purchasers have made valuable improvements on the lands. He denies all knowledge of the will or that the complainants are the heirs or devisees of said Moon.

To this answer a general replication was put in and a number of depositions were taken and appear in the record. The material facts which they establish are the execution of Moon's will; the proof of it, and its admission to record in the County Court of Fayette, in Kentucky; the destruction by fire of the clerk's office of that county in 1802 or 1803, with most of its records; and that an attested copy of the above will was procured and admitted to record in the said county court in conformity with a special act of the State of Kentucky for supplying the evidence of deeds, wills, and other records of the said office, which had been consumed. That the testator was sometimes called Archelaus and at other times Archibald, and that he had four children by his first wife, of whom Josiah P. and Martha were

Page 22 U. S. 569

two, and six children by his last wife, who, with his widow, are the plaintiffs in this suit.

After a reference to the master and the coming in of his report, a final decree was made thereon that the defendant, Kerr, assign to the complainants all the warrants, entries, and surveys procured under the warrants granted to Price and by him assigned to the defendant; that Kerr was to be paid by the complainants for his trouble and expense in locating and surveying the said lands, at the rate of

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