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 �12 10s. per 1,000 acres, and also the sum of $487.48,
which he had paid for taxes on the said lands, with interest
thereon. From this decree an appeal was taken to this Court.
The objection principally relied upon by the appellant's counsel
is that no estate in the lands in controversy passed by the will of
Archelaus Moon to the respondents, because the same was not proved
and recorded in any court of the State of Ohio, where the lands
lie, in conformity with the existing laws of that state. By an
ordinance of Congress for the government of the territory northwest
of the River Ohio, passed on 13 July, 1787, it is declared that,
until the governor and judges should adopt laws as prescribed by
that ordinance, estates in the territory might be devised or
bequeathed by wills in writing, signed and sealed by the testator
(being of full age) and attested by three witnesses, provided such
wills should be duly proved and recorded within one
Page 22 U. S. 570
year after proper magistrates, courts, and registers should be
appointed for that purpose.
It is an unquestionable principle of general law that the title
to and the disposition of real property must be exclusively subject
to the laws of the country where it is situated. This was decided
in the case of
United States v.
Crosby, 7 Cranch 115. The application of this
principle to the present case is controverted by the counsel for
the respondents upon the following grounds:
1. That the interest of the testator in these lands ought to be
considered and treated as personal estate, and therefore it might
well pass by a will, proved and admitted to record in the state
where the testator died.
2. That by an act of the Legislature of Ohio passed on 25
January, 1816, authenticated copies of wills, proved according to
the laws of any state or territory of the United States relating to
any estate within that state are allowed to be proved in the court
of the county where such estate shall be, and when so proved and
admitted to record, they are declared to be good and valid in law
as wills made in the state.
3. That as no objection was made in the circuit court to the
admission of the authenticated copy of this will, it ought not to
avail the appellant in this Court.
1. It can by no means be admitted that this is to be considered
in the light of personal property, notwithstanding the title of
Moon rested merely upon a legislative reservation in his favor
by
Page 22 U. S. 571
the State of Virginia, which was to be afterwards perfected by
the grant of a warrant and by a location, survey and patent.
Although his title to any particular tract of land was in the first
instance altogether uncertain, and even after location was purely
equitable, still the subject matter of the devise was land, the
title to which could not be acquired or lost except in the way
prescribed by the laws of Ohio. But could it even be conceded that
this was personal property, it would still be property within the
State of Ohio, and we hold it to be perfectly clear that 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 that other state or unless he be permitted to do
so by some law of that state. In the case of
Doe v.
McFarland, 9 Cranch 151, it was decided that
letters testamentary gave to the executors no authority to sue for
the personal estate of the testator out of the jurisdiction of the
power by which the letters were granted.
2. The next reason assigned why the general principle above laid
down does not apply to this case is deemed by the court altogether
insufficient, because whatever benefit the devisees might have
derived under the Act of 25 January, 1816, had they pursued the
requisitions it prescribes, as to which we give no opinion, it is a
sufficient answer to the argument drawn from that act to observe
that its requisitions were not pursued. It permits authenticated
copies of wills, proved according to the laws of any state of
this
Page 22 U. S. 572
Union, relating to any estate within that state to be offered
for probate in the court of the county where the estate lies, and
authorizes the same to be there recorded, and it then proceeds to
declare the effect of such recording to be to render the will good
and valid as if it had been made in the state, subject nevertheless
to be contested as the original might have been. But it does not
appear that the copy of this will was offered for probate and
admitted to record. Had it been so offered, it might have been
contested, and for anything that we can say, the sentence of the
court of probate might have been not to admit it to record.
3. The last point remains to be considered. That the objection
to the validity of this will to pass the lands in controversy to
the respondents was not made in the court below is highly probable,
as we observe that it is not noticed, much less relied upon, in the
answer. Nevertheless the will, duly proved and recorded according
to the laws of Ohio, constituted the sole title under which the
plaintiffs in the court below claimed the lands in dispute. It was
as essential, therefore, to the establishment of that title to
allege in the bill and to prove by the evidence or by the admission
of the defendant that this will had been proved and recorded
according to the laws of Ohio as to set forth and prove the
existence of the will itself. The defect in the title of the
respondents appears upon the face of the bill, and as it contains
no allegation that a copy of the will had been duly proved and
recorded, the defendant
Page 22 U. S. 573
cannot be said to have admitted those facts by not denying them
in his answer.
The court erred, therefore, in decreeing an assignment of all
the warrants, entries, and surveys under the warrants to the
complainants.
Considering, as we must in the present state of the cause, that
A. Moon died intestate as to these lands, they of course descend to
those persons who are entitled to the same according to the laws of
Ohio, and this is a subject fit to be decided by the court below,
to which the cause must be remanded for further proceedings.
Decree reversed and the cause remanded for further
proceedings.