
    Case 70 — Proceeding to Probate Will
    Oct 3.
    Davies v. Leete, &c.
    APPEAL PROM GREENUP CIRCUIT COURT.
    Appeal erom the County Court Dismissed by the Circuit Court and David C. Davies ■ Appeals.
    Reversed.
    Wills — Conclustveness op Judgment Probating — Contest—Person Entitled to Appeal.
    Held: 1. A.judgment probating a will devising land rendered by a court having jurisdiction is binding not only on the heirs of the testator, but as a proceeding in rem on all the world.
    2. Under Kentucky Statutes, sections 4856-4861, using the words “any person interested” in defining who are proper or necessary parties to probate proceedings, any person who claims title under an heir of the testator may become a party to such proceedings, and may appeal from a judgment of probate.
    A. R. JOHNSON, ATTORNEY FOR APPELLANT.
    At the January term, 1899 of the Greenup county court, an exemplified copy of the supposed last will and testament of Mary McNichols from the probate court of Lawrence county, Ohio, was filed and application made for probate of same and ■the probate thereof continued.
    At ithe March term, 1899, the following entry was made by the Greenup county court: “An instrument of writing purporting to be an authenticated copy, and the certificate of probate thereof, of the last will and testament of Mary McNichols deceased, proven in the probate court of Lawrence county, Ohio, was this day produced in court; and it appearing to the satisfaction: of the court from said copy that the will was proven in said probate court of Lawrence county, Ohio, to have been so executed, as to be a valid will as to personal and real property in this Commonwealth by the law thereof, wherefore it is ordered that said authenticated copy of .said last will and testament of Mary McNichols, deceased, be admitted to record and declared to be the last will and testament of decedent.”
    The body of the will is as follows: “In the Name of the Gracious Father of All, I, Mary McNichols, of Ironton, Ohio, daughter of Patrick and Elizabeth McNichols, being of full age and sound mind, but ill and weak in body, do make and publish this .as my last will and testament.
    
      First. It is my will that all my just debts and charges be paid out of my estate.
    
      Second. I give and devise all the residue of my estate to my sister, Sarah J. Holland, wife of William Holland, of Iron-ton, Ohio, .and I appoint her, the said Sarah J. Holland sole exe.cutrix of this my last will and testament, and hereby order and direct that no appraisement of my effects shall be made, and no bond be required of said exeGutrix.
    In testimony whereof I have hereunto set my hand and seal at Ironton, Ohio, this 9th day of May, A. D., 1882.”
    Mary McNichols died on June 9th, 1882, and William Holland made application to the1 probate court of Lawrence county, Ohio, on February 6, 1883, to have the will probated. On same day it was ordered that the instrument of writing purporting to be the last will and testament of Mary McNichols be placed on file and that the heirs, etc., residing in the State of Ohio, he notified 'in writing of the filing of said will and the time of hearing for probate set for February 17, 1883, at ten o’clock a. m.
    There was no other steps taken or proceedings had whatsoever, until October 14, 1898, more than fifteen years and six months after the filing of the same for probate.
    On October 14, 1898, the following appears as the court proceedings: “Now comes Sarah J. Leete and makes application for the admission to probate of the last will and testament of Mary McNiehols hereinbefore filed herein for probate, and it appearing that there are no persons next of kin of said decedent residihg in the State of Ohio, thereupon on said day came Ralph Leete one of the subscribing witnesses to said will, who, being duly sworn, testified to the due execution ■of said will, which testimony was reduced to writing by him, isubseribed and filed with said will, and it appearing that John ■M. Murphy, oue of the subscribing witnesses is dead, thereupon came M. Halloran and Ralph Leete, who, being duly sworn, testified as to the genuineness of the signature of the .said John M. Murphy.” Then follows the judgment of the ■probate court, ordering the will to be admitted to probate and the certificate authenticating same.
    On May 10, 1900, David C. Davies, the appellant herein, filed an appeal from said judgment of the Greenup county court in admitting said will to probate, and filed statement or petition which after caption is as follows. “Now comes David C. Davies and represents to this court that all the property affected in the probate of the will of Mary Nichols, a transcript of which is filed in this court, is owned by said David C. Davies, and that he is the only person having a direct interest in, to, or concerning said real estate, but Sarah J. Leete, who is claiming some right, title or interest therein, by virtue of said will of Mary McNiehols. She being the person that procured said will to be probated by the county court of Greenup county, and asserts that said property belongs .to her and not to said David C. Davies.”
    Accompanying this petition for appeal was the affidavit of David C. Davies showing non-residence of Sarah J. Leete and verifying truths of statements therein contained.
    At the April term of the Greenup county court, 1900, appellees filed first a special demurrer setting out two grounds: (1) The court had no jurisdiction over defendants. (2) That David C. Davies had no legal capacity to maintain said appeal, and later filed a general demurrer to the petition for the reasdn that the same had not stated facts sufficient to-constitute a cause of action. And the court sustained the second assignment of the special demurrer and the general demurrer, and ordered the appeal of David ,C. Davies to be dismissed and rendered judgment against him for costs, and from this judgment Davies .appeals.
    Some time after the death of Mary McNichols, hut long before the .probating of this will, her father, Patrick McNichols, sold and deeded this real estate in Greenup county Ky., to -one Frank Murphy, and in February, 1900, .appellant bought same from said Munphy, and appellees sought to probate this will so that .they could assert title to .said real estate. The appellee, Sarah J. Leete, is trhe same person as Sarah J. Holland named in the will.
    We -claim: (1) Davies’ appeal brings up the entire matter for consideration. (2) The court erred in sustaining the .special and general demurrer of appellee and in dismissing the appeal. (3) David C. Davies has such an interest in the probating of this will, within the meaning of the law, .as entitled him to contest its probate.
    We contend further that none of the following facts appear which are .essential to the probate of the will, and which must affirmatively appear from such transcript, to-wit:
    (1) That Mary McNichol’s name was subscribed by herself, (2) or that her name was subscribed by some other person in her presence or by her direction, (3) or it is not shown that the will was written by her. (4) It is not shown that she subscribed the will in the presence of any witness or witnesses. (5) It does not appear that she acknowledged the will in the presence of two witnesses or. any witness. (6) It is not shown that the witnesses or aDy witness subscribed his or their names in her presence. (7) It is not shown that she was twenty-one years of age and qualified to make a will.
    AUTHORITIES CITED.
    Beauchamp, Admr., of Mudd v. Mudd, 1 Hard., 170; Slack v, Price, 1 Bibb, 273; Bane’s heirs v McMeekin, 4 Bibb 27; Birney v. Hann., 3 A. K. Mar., 322, 325; Anderson v. Barry, 2 J. J. Mar, 265; Mirchell v. Vance, 5 T. B. Mon., 528; Rhoes v. Young, 5 Dana, 567; Martin v. McDonald, 14 B. Mon., 437; Young, &c., v. Dehume & Co., 4 Mete., 239; ■Wile v. Sweeney, 2 Dew, 161; Mitchell v. Mattingly, 1 Mete., 237; Munsell v. Phillips, 5 J. J. Mar., 77; Jones v. Grugeth, 1 Bibb, 447; King & Co., v. Rochester, 3 A. K. Mar., 227; Meadors v. Brown, 16 Ky. Law Rep., 620; Humphrey v. Hughes’ Guard., 79 Ky., 488; Kentucky Statutes, 4831, 4854, 482S, 4835. . Cornelson v. Browning, 10 B. Mon., 425; Williams-v. Brawn, 14 Bush, 418; Dupoyster v. Gagani, 84 Ky., Rep., 403; Whalen v. Nesbi, &c., 95 Ky., 464; Miller v. Swan &' Brown, 91 - Ky., 36; Thompson v. Beadles, 14 Bush, 47; Mitchell v. Holder, 8 Bush, 362; King, &c., v. Bullock, &c., 9 Dana,-41; Singleton, &c., v. Singleton, &c., 8 B. Mon., 340; Tibbatts v. Berry, 10 B. Mon., 473; Jacobs v. Pullian, 3 J. J. Mar., 200; Gasteen v. Ford, 5 Litt., 268; Henry, &c., v. Munn’s heirs,. 11 B. Mon., 239; Hughey v. Sidwell heirs, 18 B. Mon., 259; Tinker-Ringo case, 11 Ky. Law Rep., 120; Johnson v. Bard,. &c., 54 S. W., 721; Sneed v. Ewing, 3 J. J. Mar., 460; Watson v. Alderson, 146 Mo., 333; Wells v. Wells, 4 T. -B. Mon., 152; Mar v. Hanna, 7 J. J. Mar., 642; Pryor v. Mizner, 79 ,Ky., 232; Inhabitants North Hampton, &c., v. Smith, 11 Met.,. (Mass.) 390; Farrar, &c., v. Parker, &c., 3 Allen, (Mass.) 556; Stebbins v. Lathrop, 4 Pick., 33; Wiggins Admr. v. Swett, 6 M-et., (Mass.) 194; Price’s Exr., v. Gould, 143 Mass., 234; Mower v. Janetze Yerplanks, &c., 105 Mich., 398; Bryant, v. Allen, 6 ’N. H., 116; Coursin’s Will, 4 N. J. Eq., 409; Greeley’s Will, 15 Abb., Pr. Ñ. S., 393; In ,re Langevin, 45 Minn., 429; Smith v. Bradstreet’s Exr., 16 Pick., 264; S-toorsv. St. Luke’s Hospital, 180 111., 368.
    W. J. A. RARDIN, J. B. BEBBEE and ROSS & DAVIS, fok appellees.
    (No brief for appellees.)
   Opinion of the court by

JUDGE O’REAR

Reversing.

Mary MeNichols, a resident of the State of Ohio, died' in the year 1882. She was an unmarried daughter of Patrick McNiohols. From a paper alleged to be ‘her last will it appears that she attempted to dispose of all her property to her sister, Sarah J. Holland (now Sarah J. Leete). This paper was offered for probate, it is -said,, to the proper court in Ohio, in February, 1.883, but seems not to have been acted on till October, 1898, when it was probated. Thereafter, in. January, 1899, am exemplified copy -of the probate proceedings on the will referred to was tendered in the Greenup county court of this State-for probate rand record. It is stated that the testatrix owned real estate in that county. After the death of the testatrix, and before the alleged will was probated in Ohio or offered in Kentucky, Patrick McNichols, as heir at law of his deceased daughter, Mary, sold the Greenup county real estate which she 'had owned at her death' to one Murphy, who in turn, and1 before the 'Offering of the will, it seems, sold and conveyed it to appellant, who was said to be in possession under those conveyances in January, 1899, when the paper was offered for probate in Kentucky. The Greenup county court, in an ex parte proceeding, probated the paper as the will of Mary McNichols. This proceeding was under section 4854, Kentucky Statutes: “When the will of a non-resident relative to estate within this Commonwealth has been proven without the same, *an authenticated copy and the certificate of the probate thereof may be offered for probate in this Commonwealth. When' such copy is so offered, the court to which it is offered shall presume, in the absence of evidence1 to the contrary, that the will w.as duly executed and admitted to probate as a will of personalty in the State or county of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this Commonwealth. And if it appears from such copy that the will was proved in the foreign court of probate to have-been so executed a» to be a valid will of lands in this Commonwealth, by the law thereof such copy may be admitted to probate as a will of real estate.” In March, 1900 appellant filed in the Greenup circuit court a transcript of the proceedings in the county court, and with it his petition averring that he was the owner of the real estate affected, by the will, and the sole party in interest, opposed to appellee, and asked leave to prosecute an appeal from the judgment of the county court probating the will. This application was under our statute allowing any party in interest within five years from the probate in the county court to appeal to the circuit court where the trial shall be anew. A special demurrer was filed to his petition, because he did not show that he was “a party in interest” in decedent’s estate, within the meaning of our statutes; that is, that he was not an heir at law nor creditor of the testatrix. This demurrer was sustained, and his appeal dismissed. It is to review that judgment that the case is brought here. The petition did not state the nature of appellant’s interest, though it alleged'that he was “an interested party.” However, we think this objection was not so subject to the general or special demurrers filed as it was to a motion to require appellant to define more specifically the nature of his interest, and the particular part of the estate in which interested. However, it is freely admitted in argument at the bar, and so treated by both parties, that appellant’s interest is as stated' above, and we have decided to adopt that as a basis for discussing the important legal questions involved, ignoring such deficiencies as are purely technical, and not founded in apparent merit. It is not questioned that the regulation of the manner of transmitting title to real esate is subject exclusively to the law of the sovereignty wherein the land is located. By the common law, wills devising real estate were required to be proved upon the trial in suit involving the title, and that they may have been probated in the ecclesiastical courts gave them no authenticity even as against heirs at law of the testator. Indeed, if the will disposed of realty only, it seems that the ecclesiastical courts had no jurisdiction of them. In the American States and this State this inconvenient rule has been changed to the extent that where a will devises land, when probated in the tribunal having jurisdiction of such matters .it becomes binding on not only the parties who may stand in inheritable relationship to the testator^ but is binding, as a proceeding in rem, on all the world. Whalen v. Nisbet, 95 Ky., 464 16 R. 52, 26 S. W., 188; Miller ,v. Swan, 91 Ky., 36 (12 R. 629) 14 S. W., 964; Thompson v. Beadles, 14 Bush, 47; Mitchell v. Holder, 8 Bush, 362. The plainest dictates of justice would then require that to such a proceeding affecting the title to his real estate any one interested therein should be permitted to appear, and contest the1 validity of the will which is to have such an effect. King v. Bullock, 9 Dana, 41; Singleton v. Singleton, 8 B. Mon., 340; Wiggin v. Swett, 6 Metc. (Mass.) 194 (39 Am. Dec., 716); Mower v. Verplanke, 105 Mich., 398, (63 N. W., 302); Bryant v. Allen, 6 N. H., 116; Watson v. Alderson, 146 Mo., 333 (48 S. W., 478), (69 Am. St. Rep., 615). The statutes use the words “persons interested" (sections1 4856-4861, Kentucky Statutes) in defining who are proper or necessary parties to probate proceedings. We are of opinion that any person who claims title under any one an heir at law of the testator, as well, perhaps-, as any creditor of such heir at law, if the heir be insolvent, may become a party to such proceedings under the above, clause. This would1 not, of course, admit a stranger to testator’s title, or one claiming under a title hostile to his, to contest the will, in -order that he might destroy a link in his adversary’s chain of title (Johnson v. Bard [Ky.] 54 S. W., 721); nor would it admit any relation not an heir at law or such creditor (Tinker v. Ringo’s Ex’rs [11 R. 120] 11 S. W., 605; Biggerstaff’s Ex’rs v. Biggerstaff’s Admr, 95 Ky., 154 (15 R. 725) (23 S. W., 965). It follows that the circuit court erred in denying appellant tbe right to prosecute the appeal and contest the will. The judgment is reversed, and remanded for further proceedings not inconsistent herewith.  