
    HANNAH H. McEWAN et al. v. S. D. BROWN et als.
    (Filed 23 October, 1918.)
    1. Wills — Execution—Another State — Real Property — Title.
    For a will executed in another State to pass-title to real property here, it must also have been executed according to the laws of this State.
    2. Wills— Clerks of Court— Probate — Evidence — Commission — Caveat— Statutes.
    The statutory power given the clerk of the Superior Court to issue a commission to take proof touching the execution of a will executed in another State does not restrict the right to caveat a will probated on at certified copy of the will filed in the clerk’s office.
    3. Wills — Holograph — Safe-keeping — Beneficiary — Probate — Evidence— Deceased Persons — Statutes.
    Where the validity of a holograph will depends upon its having been left with the beneficiary for safe keeping [Revisal, 3127 (2)], his testimony thereof, after the death of the testator, is a transaction or communication of which he may not testify. Revisal, 1631.
    4. Wills — Probate — Clerks of Court — Certified Copies — Solemn Form— Lands — Cloud on Title — Equity.
    Where a will executed and probated in another State is relied upon to pass title to real property here, and a certified copy has been filed in the office of the Superior Court in the county wherein the lands lie, and it appears therefrom that the law of this State has not been sufficiently complied with, the heirs at law in possession may maintain a suit to declare the writing a cloud upon their title, whereon the beneficiary under the will may offer it for probate in solemn form, and the issues as to mental incapacity or other matters affecting its validity may be raised.
    5. Wills— Personalty— Title — Testator’s Domicile — Caveat—Courts—Jurisdiction.
    A will, valid under the laws of the testator’s domicile in another State,, will pass title to the personal property situated here, though not in conformity with our statute; and a caveat should he filed, if the validity of the will be contested, in the courts of the testator’s domicile.
    Brown, J., took no part in the decision of this case.
    This is an appeal by plaintiffs from Connor, sustaining a demurrer ore tenus to the complaint, April Term, 1918, of Beaufobt.
    
      Small, MacLean, Bragaw & Rodman for plaintiffs.
    
    
      N. T. Green and F. S. Spruill for defendants.
    
   Clabk, C. J.

The plaintiffs are the sister and nephew and only heirs at law and next of kin of Sylvester Brown, who died in an insane asylum in Virginia, where he had been confined for several years. He died unmarried and without issue, 25 December, 1915, seized of real and personal property in Beaufort County. The administrator, who qualified in Beaufort, holds said personal estate for distribution upon determination of this action. The plaintiffs, as heirs at law, have divided the land by deed, duly registered.

On 20 January, 1916, the defendant S. D. Brown, a nonresident of this State, filed in the office of the Clerk of the Superior Court of Beaufort a certified copy of the last will and testament of Sylvester Brown, and of the probate thereof, in the Corporation Court of Norfolk, Va.r claiming that by virtue thereof he is entitled to the real and personal property of the decedent lying in Beaufort County.

The complaint alleges that said paper-writing is not the last will and testament of Sylvester Brown, assigning mental incapacity and undue influence; and, further, that the certification of said paper-writing and of the proof and probate are void and of no effect, for that the laws of this State were not complied with, especially as to the said real estate, and that the only effect of filing such copy in the clerk’s office is to cast a cloud upon plaintiffs’ title to said real estate. The plaintiffs asked that they be declared the owners of said real and personal property of the decedent in Beaufort County, and that said paper-writing be declared not the last will and testament of Sylvester Brown and of no effect in this State.

The alleged will is a holograph and purports to bequeath and devise the testator’s entire property, real and personal, after the payment of debts and burial expenses and reserving $100 for a monument, to S. D„ Brown, his cousin.

The holograph will was without subscribing witnesses. It was not found among testator’s valuable papers, but the devisee, S. D. Brown,, produced it and testified that it was lodged with him for safe-keeping.

When a citizen of another State devises land in this State, such devise has no “validity or operation unless the will is executed according to the1 laws of this State, and that fact must appear affirmatively in the certified probate or exemplification of the will.” Rev., 3133; R. R. v. Mining Co., 113 N. C., 241; Drake v. Merrill, 47 N. C., 368.

The statute further provides that if it does not appear that the will was executed according to the laws of this State, the clerk shall have the power to issue a commission for taking proofs touching the execution of the will. The title to lands lying in this State can pass only by deed, or will, duly proven according to the laws of this State, or, in case of intestacy, by descent, under our statute. The will of a nonresident is not effective as to realty here unless executed according to the laws of this State, and this must affirmatively appear in the certified probate. Rev., 3133. While that section gives the clerk power to issue a commission to take proofs touching the execution of the will, this does not restrict the plaintiffs from cav eating the same and requiring proof in solemn form,, as in the case of the probate of a will had in this State in common form.

The testimony of S. D. Brown that the will was deposited with him for safe keeping is a most essential and indispensable fact in the execution of the will, and it was a transaction between him and the deceased, which he was incompetent to prove by Bev., 1631, and the demurrer should have been overruled. Bev.,- 3127 (2), requires that the holograph will must not only be proven “on the oath of at least three credible witnesses who state that they verily believe such will and every part thereof is in the handwriting of the person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part'thereof,” but, further, “it must appear on the oath of some one of said witnesses, •or some other credible person, that such will was found among the valuable papers and effects of the decedent, or was lodged in the hands of some person for safe keeping.”

In Cornelius v. Brawley, 109 N. C., 542, the .Court held that the widow ánd devisee was competent to prove that the script propounded was found among the valuable papers of the deceased, because this was not a transaction or communication between the deceased and the witness.

Alston v. Davis, 118 N. C., 218, also relied on by the defendant, does not hold that the devisee was competent to prove that the paper-writing was deposited with her, but the letter which was held to be a will, though found in her possession, stated on its face that it was deposited with her. It should not pass unmentioned that Alston v. Davis, supra, has been overruled by Spencer v. Spencer, 163 N. C., 88. Vester v. Collins, 101 N. C., 114, merely held that witnessing1 a will at the request of a testator is not a personal transaction with the deceased which the witness is incompetent to prove (Rev., sec. 1631) ; the attesting witness, though a beneficiary, being the witness of the law and not of 'the parties. Rev., 3120, while admitting such witness as competent, renders void the devise.

In Cox v. Lumber Co., 124 N. C., 78, it was held that the executor and devisee in a will was competent to prove the existence of the will, its probate and registration, where destroyed by fire, and also its contents and his qualifications as executor, because these matters, all occurring after the death of the testator, were not transactions between him and the deceased. Under our decisions, the devisee might also prove the handwriting of a holograph will, or the signature of the testator, for these are not transactions between him and the deceased. Sawyer v. Grandy, 113 N. C., 42; Ferebee v. Pritchard, 112 N. C., 83; Buie v. Scott, 107 N. C., 181; Hussey v. Kirkman, 95 N. C., 63. So, also, a witness can prove the value of an article sold to defendant’s intestate, but not that he made the sale (March v. Verble, 79 N. C., 19), or to prove any act of the deceased not had with himself. S. v. Osborne, 67 N. C., 259.

A witness would not be competent to prove in his own interest that he handed the deceased an account with the view of proving an implied acknowledgment. Lane v. Rogers, 113 N. C., 171. The defendant relies upon Hampton v. Hardin, 88 N. C., 592, where the Court held the devisee and executor competent to prove that the holograph will was deposited with her for safe keeping. We cannot hold that case well considered. It is in conflict'with the terms of the statute which forbids a party or a person interested in the event of an action from testifying as to a transaction or communication with the deceased, and is opposed to the authorities above cited, and, indeed, to all the cases construing that provision of wbat is now Rev., 1631. See citations to above cases in the Anno. Ed. and to Bunn v. Todd, 107 N. C., 266, where that section is analyzed. Hampton v. Hardin cannot be recognized as authority, and is overruled.

It appears upon the face of the probate that this will was not found among the valuable papers of the decedent, and that it was shown only by incompetent testimony — the- oath of the beneficiary — that it had been deposited with him by the testator for safe keeping, and it is in evidence-that the testator for many years had been, and at the time of his death was, confined in an insane asylum. Under these circumstances, it were-better that the sanity of the alleged testator at the time of writing the will should have appeared in the probate. But the finding of a holograph will among the valuable papers of the deceased, or competent evidence of' its deposit in other hands for safe keeping, is as essential a part of the-proof of execution as that the paper-writing is in the handwriting of the alleged testator. It appears affirmatively here that the latter fact was-not shown by evidence sufficient to prove its execution, and it is open to-the plaintiffs to contest by this proceeding in the nature of a caveat the validity of the will on the ground of incompetency and undue influence,, and to require due proof that it was delivered by the alleged testator to-the beneficiary for safe keeping. In the absence of such proof, which' is-shown on the face of the probate, the will can have no effect in this State-to control the devolution of real property, until proven in solemn form.

It was competent, therefore, for the heirs at law, who are in possession of the realty, to contest the validity of the will as a conveyance of the realty by asking that its record upon the defective probate, as certified, be declared a cloud upon their title. It will be open, however, to the-executor and beneficiary of the will to offer it for probate in solemn form, in which case the due execution of the will and the question of the mental incapacity of the alleged testator and undue influence can be submitted to a jury. The decree in this ease must set it aside as a cloud upon title,, unless and until its validity is established in solemn form, as upon a. caveat.

The whole subject has been so fully discussed in Martin v. Stovall (Tenn.), with elaborate citations in the notes, 48 L. R. A., 130, that further research is unnecessary. The authorities there cited hold that the-decree of probate in the State where the testator is domiciled, if valid on its face, is effective as to personal property, though a few courts hold with Bowen v. Johnson, 5 R. I., 112, that the probate even as to personalty situated in another State is only prima facie; but the universal rule is that a will, to affect real estate, must conform as to its execution and proof to the law of the State where the land lies. The decisions to this effect are numerous and uniform. In Rice v. Jones, 4 Call (Va.), 89, it was held that, though a will had been declared void by a court in North Carolina on account of the incapacity of the testator, or for any ■cause whatever, it could be probated in Virginia as to lands lying in that State.

The almost universal rule may thus be summed up: “Wills of personal property must be executed and probated according to the law of the ■domicile; but wills devising real estate must be executed and probated in compliance with the law of the State where the land lies.”

In Thrasher v. Ballard, 33 W. Va., 285 (25 Am. St., 896), it is said: “Is this her valid will? Of this there is no evidence but this Virginia probate. That could have no force beyond Virginia. It could not ■operate to pass land in this State by establishing the due execution and validity of the will. 1 Minor’s Institutes, 942, 943; Sneed v. Ewing, 5 J. J. Marsh, 460 (22 Am. Dec., 41); Rice v. Jones, 4 Call, 89; 1 Lomax Exr. (341), 555; Bowen v. Johnson, 5 R. I., 112 (73 Am. Dec., 49); Ives v. Allyn, 12 Vt., 589; Kerr v. Moon, 9 Wheat., 565. An executor of ■one State has no power of suit in another, without reprobate and qualification in such other State. Kerr v. Moon, supra; 1 Rob. New Pr., 161, 162. There the foreign probate is ineffectual. Why not here?” The Court then proceeds to consider the act of Congress, touching the authentication of records, and says: “It has been held that probate orders do not fall, like judgments inter partes in ordinary suits, under this provision, but partake of the nature of in rem proceedings, binding only the property [Bowen v. Johnson, 5 R. I., 112 (73 Am. Dec., 49)], while the reverse view has also been held. Balfour v. Chew, 5 Martin (N. S.), 517. But, grant that probate sentences do fall under the act of Congress that gives the order such force as it has in Virginia; but the force it has there as to property is local and does not affect realty in another State, which is governed by the lex loci rei sitae. In the words of Story on the Constitution, sec. 1313, ‘The Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the territory.’ ”

“The probate of a will in Pennsylvania gives it no validity whatever ■as to lands in Virginia or Ohio, unless the will is probated in such States, for it is a settled principle of law that the title and transfer of real property depend entirely upon the laws of the country where it is situated.” McCormick v. Sullivant, 10 Wheat. (U. S.), 192. To the same purport are numerous eases in the notes to Martin v. Stovall, 48 L. R. A., 130, which see. In Storage Co. v. Windsor, 148 Ind., 682, it is said that, '“When a foreign will has been admitted to probate, or may be offered for record, any person interested in the estate may contest such will within the time, in the manner, and for any cause prescribed by the laws of Indiana, in cases of domestic wills.” In Gardner on Wills it is said: “The probate of a foreign will puts it on the same footing as a domestic will, and renders it subject to contest in tbe same manner as a domestic will would be,” citing Dew v. Dew, 23 Tex. Civ. App., 676.

As to realty, tbe law is thus summed up in 5 R. C. L., p. 1021, sec. 109: '“A devise of land will not be effectual unless made and proved according to tbe lex rei sitce. For tbis reason, tbe mere fact tbat a will bas been admitted to probate in another State is not conclusive of its execution and proof in tbe manner required by tbe lex rei sitce. McCormick v. Sullivant, 10 Wheat., 192; Sneed v. Ewing, 5 J. J. Marsh (Ky.), 460, and notes to 48 L. R. A., 133; 2 L. R. A. (N. S.), 428. Hence it is also tbat tbe validity of a will may be contested where tbe land is situated, although probated in another State, and notwithstanding tbe fact tbat tbe decree of another State probating tbe will is presumed to be correct, and it is further presumed tbat tbe court bad jurisdiction. Some cases denied tbe effect on real estate on tbe ground tbat tbe court of original probate bad no jurisdiction over tbe real estate in another State. Notes to 48 L. R. A., 136.”

As to personalty, tbe early authorities were inclined to bold tbat tbe probate in another State was merely prima facie as to personalty in tbis State, though conclusive as to personalty in tbe State of domicile. But tbe present state of tbe law is tbus summed up in 5 R. C. L., p. 1017, sec. 104: “It is a firmly established rule tbat, at common law and in tbe absence of a local statute to tbe contrary, tbe validity of a will of personal property, as to its form, tbe manner of its execution, and all other matters tbat relate to its legal existence, as distinguished from its essential validity, depends upon tbe law of tbe testator’s domicile, irrespective of tbe law of tbe place where tbe will is executed, or of tbe place where tbe testator died, or of any other law whatsoever. . . . On tbe other band, tbe formal validity of a will of real property depends upon tbe law of tbe State or country where tbe property is situated, irrespective of tbe law of tbe domicile of tbe testator or of tbe place where tbe will is executed.”

As to personal property, as a general rule, it follows tbe person of tbe owner, and a will held valid in tbe State of bis domicile transfers tbe title thereto, not only as to tbe personalty there, but as to personalty here, subject only to liability for debts due to tbe citizens of tbis State, and a will of personalty duly probated under tbe laws of tbe domicile will not be questioned here when tbe probate is valid on its face. In such case, those seeking to caveat tbe will on tbe ground of incompetency of tbe testator, or undue influence, or insufficiency of probate (not disclosed on its face), should proceed in tbe court of tbe domicile. Where, however, a provision in a will is contrary to our public policy, it is ineffective here. Sorrey v. Bright, 21 N. C., 113.

Tbe demurrer should be sustained as to tbe personalty, in regard to wbicb tbe plaintiffs, if so advised, must proceed by a caveat in Virginia.

As to tbe realty, tbe demurrer should bave been overruled,. and tbe record of tbe will must be adjudged a cloud upon tbe title unless and until it bas been established upon a probate in solemn form in this State, and to this extent tbe judgment below is reversed. Tbe defendant will pay tbe costs of tbe appeal.

Tbe costs of this Court will be paid by tbe defendant administrator of Sylvester 'Brown out of tbe funds in bis bands.

Reversed.  