Opinion
6 Div. 407.
March 8, 1934.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
H. H. Grooms and Coleman, Spain, Stewart Davies, all of Birmingham, for appellants.
Probate courts have original and exclusive jurisdiction of the probate and establishment of wills, and courts of law and equity do not take cognizance thereof or rights dependent on them until after probate. Wood v. Mathews, 53 Ala. 1; Jordan v. Jordan, 65 Ala. 301; Trawick v. Davis, 85 Ala. 346, 5 So. 83; Wachter v. Davis, 215 Ala. 659, 111 So. 917; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885. A will not probated vests no title. Gilbert v. Partain, 222 Ala. 459, 133 So. 2; First Nat. Bank v. Robertson, 220 Ala. 654, 127 So. 221; Self v. Self, 212 Ala. 512, 103 So. 591; Inge v. Johnston, 110 Ala. 650, 20 So. 757. Sentences, decrees, or judgments of foreign courts do not operate beyond the limits of their jurisdiction, and the probate of a will in Germany confers no authority to proceed upon it in this state. Moore v. Lewis, 21 Ala. 580. Wills are not effective unless filed for probate within five years from the date of death of the testator. Code 1923, § 10608; Gilbert v. Partain, supra. Limitations applicable to civil actions apply to bills in chancery. Code 1923, § 6522. A bill is demurrable if it shows on its face that the relief sought is barred by statute of limitations or laches. Glass v. Stamps, 213 Ala. 95, 104 So. 237; Bessemer v. Schanz, 226 Ala. 573, 148 So. 131; Meeks v. Miller, 214 Ala. 684, 108 So. 864; Presley v. Weakley, 135 Ala. 517, 33 So. 434, 93 Am. St. Rep. 39; Montgomery L. Co. v. Lahey, 121 Ala. 131, 25 So. 1006; Askew v. Hooper, 28 Ala. 634.
Martin, Turner McWhorter, of Birmingham, and Inge, Stallworth Inge, of Mobile, for appellee.
The bill contains equity in that it seeks the exercise by a court of equity of its inherent right of equitable control and administration of a trust. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Martin v. Ellerbe, 70 Ala. 326; Waller v. Jones, 107 Ala. 33l, 18 So. 277. Appellant Marx stands in the position of trustee in invitum, constructive trustee, trustee ex maleficio, or trustee de son tort. American Bond Co. v. Fourth Nat. Bk., 205 Ala. 654, 88 So. 838; Lady Ensley Co. v. Gordon, 155 Ala. 528, 46 So. 983; Martin v. Ellerbe, supra. On the facts alleged, appellant is estopped to deny that appellee is the owner of the property in controversy. Sanford v. Hamner, 115 Ala. 406, 22 So. 117; 2 Pomeroy's Eq. Jur. § 1044. Personal property has as its situs the domicile of the owner. At the death of Mrs. Gross, the property had its situs in Germany at her domicile. 32 Cyc. 675; In re Layton's Estate, 217 Cal. 451, 19 P.(2d) 793; Estate of Hodges, 170 Cal. 492, 150 P. 344, L.R.A. 1916A, 837; Brock v. Frank, 51 Ala. 85; Blacksher Co. v. Northrup, 176 Ala. 201, 57 So. 743, 42 L.R.A. (N. S. 454. The property passed to appellee as of the date of the death of Mrs. Gross upon the probate of the will. Union Trust Co. v. Nelen (Mass.) 186 N.E. 66. The will having been probated in Germany at her domicile where the property had its situs, appellee may assert her rights in Alabama, although the will has not been probated here; the only requirement being that of alleging and proving probate in the proper form. Blackwell v. Grant, 46 Ga. App. 241, 167 S.E. 333. The Act of 1923 (page 162) does not apply, the will having been probated at testatrix' domicile before its enactment. Hoffman v. Hoffman, 26 Ala. 535; Powell v. Powell, 30 Ala. 697. Having been so probated, it was not rendered ineffective because not filed for probate in Alabama within five years. 40 Cyc. 1256; Morrison v. Fletcher, 119 Ky. 488, 84 S.W. 548; Johnson v. Bard (Ky.) 54 S.W. 721; Matter of Newell, 10 Haw. 80. Actions based on fraud may be commenced within one year after discovery of fraud; and, as it does not appear appellee discovered the fraud more than a year before filing the bill, the defense of the statute of limitations must be set up by plea or answer. Lady Ensley Co. v. Gordon, supra; Sanders v. Wallace, 114 Ala. 259, 21 So. 947; Blythe v. Enslen, 219 Ala. 638, 123 So. 71, 72; Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Shorter v. Smith, 56 Ala. 208; Thompson v. Parker, 68 Ala. 387; 2 Wood on Limitations (4th Ed.) § 200.
The averments of the bill are properly to be construed as disclosing that complainant in effect here seeks the recovery of a legacy left to her under the will of Johanna Gross, admitted to probate in Germany, the home of both complainant and the testatrix, but not so probated in the state of Alabama, the situs of the property, or any state or territory under the dominion of the United States.
The demurrer takes the point that the probate of the will in Germany is ineffectual to show a right or title to the personality, and to that end its probate here was essential. Under the decisions of this court the point is well taken.
It is, of course, well established that courts of equity have no jurisdiction to probate or establish wills, a matter resting exclusively in the jurisdiction of the probate court (Wachter v. Davis, 215 Ala. 659, 111 So. 917; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885), and that any rights thereunder cannot be asserted or recognized until the will has been admitted to probate in the proper forum. Trawick v. Davis, 85 Ala. 346, 5 So. 83; Jordan v. Jordan's Adm'r, 65 Ala. 301; Gilbert v. Partain, 222 Ala. 459, 133 So. 2. The proper forum for this purpose is the probate court, and express provision is made in our statute for probating a will which has been admitted to probate elsewhere than in the United States. Section 10620, Code 1923. The recent amendment of this statute (Gen. Acts 1931, p. 162) is much more restrictive of this right, and having been enacted long after the probate of the will in Germany, and the vesting of complainant's interest thereunder, is not to be considered as of any influence in the instant case. Hoffman v. Hoffman, 26 Ala. 535; Powell's Distributees v. Powell's Legatees, 30 Ala. 697.
But the question here presented was determined by this court as far back as Moore v. Lewis, 21 Ala. 580. There the bill was to recover a legacy bequeathed to complainant's intestate by his son who resided and died in Cuba, and we may add, at a time when that country was a part of the Spanish Dominion. The will was duly proven in Cuba, but never admitted to probate in this state or in any of the United States. The court said:
"The rule is, that a suit cannot be maintained for a legacy until the will has been admitted to probate, Kerr v. Moon, 9 Wheat. 565, 6 L.Ed. 161; Shepherd v. Nabors, 6 Ala. 631; and as sentences of foreign courts do not operate, except as evidence, beyond the limits of their jurisdiction, the proof or probate of the will in Cuba conferred no authority to proceed upon it as a will in this State, although it might be evidence upon which to have it admitted to probate here.
"The title of the plaintiff in error to the legacy depended upon the will, and until he had established it as such, according to the laws of this State, he could assert no right under it in the courts of this State."
In Wood v. Mathews, 53 Ala. 1, the case of Moore v. Lewis, supra, is cited with approval, and in the discussion of a similar question the opinion proceeds:
"In the absence of the wills, there would not be the slightest foundation for their suit. * * * Of these wills probate must be had before any court can receive them in evidence. If they were received without probate, other tribunals would be compelled to invade the province of the courts of probate — to exercise the exclusive jurisdiction conferred on them — and inquire into the character of the instrument, the capacity of the testator, the mode and sufficiency of its execution, and all the questions a probate settles and concludes. To avoid this, the temporal courts in England, and the courts of law and equity in this country, do not take cognizance of testamentary papers, or of rights dependent on them, until after probate. * * *
"It may be, and probably is true, that the wills under which the complainants claim have been duly admitted to probate, in the proper forum, of the domicil of the several testators. It may also be true, that under the statute (R. C. § 1949), probate of them could be taken here, as a matter of course, on the production of authenticated copies of the wills and probates had in the domicil. This shows only that the complainants have the evidence on which to place themselves in a condition to maintain suit. But as is said, in Armstrong v. Lear, supra (12 Wheat. 169, 6 L.Ed. 589): 'It is one thing to possess proof which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon.' "
And in Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13, Moore v. Lewis, supra, is again approvingly cited.
In Bigelow v. Old Dominion Copper Mining Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009, Ann. Cas. 1913E, 875, there is an interesting discussion of the difference in the probative force of a state judgment, considered in the light of the constitutional provision for full faith and credit, and a foreign judgment not so protected. But further discussion of this phase of the case would appear unnecessary as we consider the above-noted authorities from our own court decisive of this appeal, and find in opposing brief no sufficient reason why they are not here applicable, with particular reference to Moore v. Lewis, supra, which appears to be more directly in point.
There appears to be some insistence by appellee that the alleged fraudulent conduct on the part of defendant Marx is sufficient upon which to base an equitable estoppel (citing Sanford v. Hamner, 115 Ala. 406, 22 So. 117), and thus preventing defendants from asserting any rights to the property in conflict with that of complainant.
But we find no sound reason for construing the bill's averments to such effect. Preliminary to all other questions is complainant's right to the property and her alleged title rests upon a will probated only in Germany, and under the authorities herein noted the will therefore confers no authority upon her to proceed upon it as a will in this state.
Clearly, there is nothing in the allegations of this bill that would justify a failure on complainant's part to show her right or title to the legacy which in effect she here seeks to recover.
As the matter here considered and determined, adversely to complainant, is fundamental and renders the bill fatally defective, other questions argued may well be pretermitted.
Let the decree be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.