
    *Aquilla Jones and wife et al. v. Lucinda Ann Robinson et al.
    1. Section 52 of the wills act of May 3, 1852, which provides that no proceeding shall be had in this state to contest a foreign will executed and proved according to the foreign law, relative to property in this state, and which also declares that if the will be set aside where made and proved, it shall be of no validity here, has reference to such foreign wills as, when made and proved in conformity to the foreign law, are, by the laws of this state, valid to dispose of property therein situated, and does not apply to cases, arising under former laws, of wills valid where made, but inoperative here because not executed according to our law.
    2. Without deciding that resort to the statutory mode provided for contesting a will is necessary in order to set aside or declare invalid the record, in this state, of a foreign will inoperative to dispose of property in this state by reason of it not conforming to the statute in force at the time of the making of such will: yet, where that mode of proceeding has been resorted to, the petition will not, on that ground, be dismissed, as such suits have been repeatedly entertained for that purpose.
    3. The act of March 20, 1849, to amend the wills act of 1840, has no application to cases like the present, arising under statutes prior to the act of 1840, where the will, though made and proved according to the foreign law, is inoperative on property situate in this state, and not authorized to be admitted to record here, for want of conformity to our law. The probate and rejection of the will, therein referred to, has reference to its probate or rejection in the foreign forum alone.
    Reserved in the district court of Logan county.
    The petition in this case is filed by Aquilla Jones and wife, and by James Hinton and wife, and states, in substance:
    That in the year 1826, or 1827, Benjamin Dawson, the ancestor of Mrs. Jones and Mrs. Hinton, died intestate, in Frederick county, Virginia, seized of the lands in the petition described.
    
      That in the year 1827, Ann Dawson, his widow, made a deed, in fee simple, to Robert MoOay for the same premises.
    That in 1832 McOay produced to the county court of Frederick county, Virginia, a paper writing, without date and without signature, purporting to be the last will of the said Benjamin Dawson, and proved by the oaths of two witnesses that the writing was all in the hand-writing of the supposed testator.
    That the paper writing, without being found by the court to be the last will of said Benjamin Dawson, “ was ordered to be recorded to have such effect as by law it is entitled to.”
    That in the year 1850 a certified copy of the record and ^probate of said alleged will was produced to the court of common pleas of Logan county, Ohio, and by that court admitted to record.
    That McCay conveyed the premises, which have by successive' conveyances become vested in part of the defendants named, who are in possession and claim title thereto.
    That Ann Dawson died before the probate of the alleged will.
    The heirs and legal representatives of Benjamin Dawson, and of Ann, his widow,, who are not plaintiffs, are made defendants, as well as the persons claiming title to the premises.
    It is averred in the petition that the plaintiffs, Caroline Jones, and Eliza Hinton, were, at the time the alleged will was probated, as claimed, in Virginia, and ever since have been, and still are, married women.
    The prayer of the petition is, that an.issue be made to try the validity of said pretended will; that it may be declared void, and the probate of the same canceled and held for naught; and that such other and further relief may be granted as may be equitable and proper.
    The following is a copy of the record and probate of the alleged will:
    “BENJAMIN DAWSON’S WILL.
    “Pleas before the court of common pleas within and for the county of Logan and State of Ohio.
    “At a court begun and held at the court-house in said county, on the 4th day of November, 1850. Be it remembered, that on the-25th day of November, of the term aforesaid, an authenticated, copy of the last will and testament of Benjamin Dawson, late of Frederick county, Virginia, was this day produced in court by Mr;. Casad; and it appearing to the satisfaction of the court that the-said will has been proved in said State of Virginia, according to-the laws of that state, and that the said will has relation to property within the said county of Logan, Ohio: therefore, on motion, it is ordered by the court, that the said authenticated copy be recorded in the records of wills for said county of Logan. *Said will is recorded in the words and figures following to wit:
    “ ‘I, Benjamin Dawson, of Frederick county, Virginia, being of sound and disposing mind, do make and ordain this to be my last will and testament.
    “ ‘ I give and bequeath to my dear wife, Ann, four hundred acres of land lying and being in the State of, Ohio, on Mill creek, in Logan county, being *a part of a tract of land that was surveyed for George McCredie, containing one thousand acres. And I do direct that my said wife shall have her choice of said tract, in the center thereof or at either corner, as she may choose, to her and her heirs forever.
    £!<I give and bequeath to my daughters, Lucinda Ann, Eliza Pope, Caroline Amanda, Harriet Claibourne, Sarah Catharine, and Maria Louisa, the residue of said tract of land, to be equally divided between them, or the survivor of them, according to quality, when they shall attain the age of twenty-one, or shall marry.’
    “At a court held for Frederick county, the 4th day of June, 1832, this paper, purporting to be the last will and testament of Benjamin Dawson, deceased, without date, and not subscribed by the testator, was produced to the court, and, there being no subscribing witnesses thereto, was proved to be altogether in the handwriting of the said Benjamin Dawson, by the affirmation of Jacob McKay, and the oath of Richard W. Barton, and was ordered to be recorded to have such effect as in law it is entitled to.
    “By the court,
    “T. A. Tidball, Clerk.”
    
    
      “ Virginia.
    
    “I, Thomas Allen Tidball, clerk of the county court of the-county of Frederick, do hereby certify that the foregoing is a true transcript from the records of the said county.
    “ In testimony whereof, 1 hereunto subscribe my name and affix the seal of the said court, the 19th day of February, 1849, and in the 73d year of the commonwealth.
    [seal.] “ T. A. Tidball.”
    “ Virginia.
    
    
      “ I, George Reed, a presiding justice of the county court *of the county of Frederick, do hereby certify that the foregoing attestation of Thomas Allen Tidball, the clerk of the said court, is in due form of law.
    “ Given under my hand and seal the 19th day of February, 1849
    [seal.] “ George Reed.”
    
      The defendants demurred to the petition, and the ease was reserved for the decision of this court.
    
      W 3. West, for defendants, in support of the demurrer to the petition, argued:
    1. The proceeding to contest the validity of this will is purely statutory. The remedy for contesting the validity of wills executed and proved abroad, and admitted to record in this state prior to the 1st day of July, 1853, is not furnished by the code (see sec. 604 of the code; also, the 52d section of the wills act, 3 Curwen, 1911); nor is it of common-law'or general ‘chancery jurisdiction.
    . If such remedy can be furnished by the courts of this state, it is •derived exclusively from the wills act of 1840. See 1 Curwen, 685.
    This will can not be contested by a petition under the code, for the 24th section of the act organizing the probate court, expressly limits proceedings under the code to wills “ which shall be admitted to probate in the probate court, or court of common pleas on appeal.” This will was admitted to record before the organization •of the probate court.
    2. As a will “proved” in a foreign state will be presumed to have been executed “ according to the laws thereof,” the only question our courts can try would be, whether such will was proved .according to the laws of such foreign state. Wills act of 1852, sec. 52, 3 Curwen, 1911; Bailey v. Bailey, 8 Ohio, 239; Holman v. Riddle, 8 Ohio St. 384; 1 Greenl. Ev., secs. 441, 450, 504-506; Tolford v. Barney, 1 Iowa, 575; Stevenson v. Huddleson, 13 B. Mon. 299; Swazey v. Blackman, 8 Ohio, 19; Glover v. Ruffin, 6 Ohio, 255; wills act of 1840, 1 Curwen, 685.
    3. The probate of this will under the laws of Virginia is *sufficient. Code of Virginia of 1819, secs. 12, 13, p. 375; Vaugh v. Green, 1 Leigh, 287; Parker’s Ex’rs v. Brown’s Ex’rs, 6 Grat. 564, 565. It can not be presumed that because the record contains the clause, “to have such effect as by law it is entitled to,” the court did not intend that it should have any effect at all. The fact that the court did admit it to record, is conclusive that it was its dulció do so, upon finding the paper to be a last will. .
    4. Section 6 of the act of March 14, 1853, organizing the courts of this state, does not give jurisdiction in this case. That section was not intended to create any new process or remedy, nor to revive any which had been previously superseded or abrogated; for this it could not do; but was intended to declare who should enforce the process and remedies authorized by existing statutes.
    Was there in force, at the adoption of the new constitution, any law authorizing the validity of this will to be contested in the courts of this state, which continued in force when said section 6 was enacted ? At the adoption of the constitution, there were but two acts in force respecting wills, to wit: The act of March 23, 1840 (1 Curw. 685), and of March 20, 1849 (2 Curw. 1478), with their amendatory acts. All these acts were repealed by section 79 of the act of May 3,1852 (3 Curw. —). The remedy and process authorized by said act of 1840 was not saved by section 6 of the act of March 14, 1853, because the act of 1840 was not then in force.
    But the repealing act. of May 3, 1852, had this saving clause: a All rights which have accrued under the laws so repealed shall not be affected by the repeal thereof” It may be claimed by the plaintiffs, that the right to contest this will in this state accrued to them under the act of 1840, and was thus saved to them by the act of 1852. If this proposition were true, having reference to the act of 1840 alone, it is not true when the act of March 23, 1849 (2 Curw. 1478), is taken into the account, under which the plaintiffs might have filed their caveat in the office of the recorder at any time within two years, or previous t<J March 23, 1851. But having neglected to do so, they are forever barred, and were so long ^before the act of 1840 was repealed. The right to plead such neglect and bar accrued to the defendants under said act of 1849, and was saved to them by the repealing act of 1852.
    If it be claimed that the act of 1852 saved to the plaintiffs an estate in the lands, it is sufficient to say that no estate in said lands accrued to the plaintiffs under the act of 1840, or of 1849; but if ever it accrued to them, it did so under the act of 1824. But the act of 1824 being repealed without saving, all the remedies provided by it were swept away.
    The right to file a caveat and commence proceedings within two years, was the only right which could accrue to the plaintiffs under the acts of 1840 and 1849. Either this accrued, or nothing accrued to them. But only such rights as accrued under these statutes were saved by the act of 1852, and no others. Now, if this right to file caveat and commence proceedings within two years was saved, the right expired when the two years elapsed, and hence the plaintiffs had no right when this proceeding was instituted. Or if this right 
      to file caveat, etc., was not saved to them, then no right which accrued to them under any of the acts of 1824, 1831,1840, and 1849' were saved to them by the act of 1852; and section 52, which declares that no proceeding to contest a foreign will shall be had in-this state, became absolute and effectual to exclude the jurisdiction of this court.
    
      Stanton & Allison, for plaintiffs:
    Proceedings to contest the validity of a will may be instituted either under the code, or according to the law in force at the time-the code was adopted. Code, sec. 604. The testator died between, the passage of the act of 1824 and its repeal in 1831.
    Section 12 of the act of 1824 authorized the record of foreign wills, and also, in express terms, authorized such foreign wills to be* contested in our courts. If the clause in this section authorizing the contest of foreign wills was repealed and not preserved by the* act of 1831, the section of which it is a part was also repealed, and the right to record a foreign will is taken away, as well as the right to contest it.
    Section 14 of the act of 1831, authorizing the record *of foreign wills, is not retrospective, and does not apply to wills executed before its passage. But if it does, it authorizes their contest, as well as their record.
    The law of 1831, authorizing the contest of wills, applies to* foreign as well as domestic wills. Bailey v. Bailey, 8 Ohio, 239; Meese v. Keefe, 10 Ohio, 362.
    The law of 1840, which repeals the law of 1831, saves all rights- and remedies existing under that law. This saves the right acquired under the act of 1831, to contest foreign wills. If it does not, it. does not save the'right to admit them to record.
    The act of 1840, however, substantially re-enacts the law of 1831, in regard to the record and contest of foreign wills.
    As to the acts of 1849 and 1851, both of which were repealed by the act of March, 1852 : So far as the question of contesting a foreign- will is concerned, these laws had no application; and, if they had, they were not in force long enough after the record of the will in Logan county for the limitation provided by them to operate.
    As to the 52d section of the present wills act, which provides* that no proceedings shall be had in this state to contest a foreign, will:
    
      It was not intended by tbe legislature to be retrospective, or to operate on foreign wills recorded in this state before its passage. If this be not the true construction, the law would be plainly unconstitutional. Curran v. State of Arkansas, 20 Curtis, 524, 538; Green v. Biddle, 8 Wheat. 1; 5 Curtis, 351, 355; Bronson v. Kinzie, 14 Curtis, 632-34; 1 Kent’s Com. 455.
    But this provision applies only to wills executed and proved .according to the laws of any other state or territory. And our proposition is, that this will was neither executed nor proved according to the laws of Virginia (1 Rev. Stat. of Va. 375), which provides that wills shall be “ signed ” by the testator, and, if wholly in his handwriting, shall be valid without any subscribing witnesses. This will was written by the supposed testator, but was not signed by him. His name in his own handwriting in the commencement cf the will can not, under the circumstances attending it, be regarded a “ signing.” *Waller v. Waller, 1 Grat. 454, 479; Rochelle v. Rochelle, 10 Leigh, 125.
    There is nothing in the record of the Yirginia court to aid the will, or dispense with the proof required by the Yirginia law. The court did not find the paper to be the last will of Dawson. It is admitted to record to have such effect as by law it is entitled to. There was no proof that he was either of full age or of sound mind, -or that the paper was even published or intended by him to be his last will.
    It was not executed according to the laws of Ohio. Section 12 cf the act of 1824 (2 Chase, 1307), provides “that authenticated copies of wills proved according to the laws of any state,” may be admitted to record in this state. But to authorize the record of a foreign will in this state, it must be executed according to the laws cf Ohio, but may be proved according to the laws of the state where executed. In regard to the execution and probate of foreign wills, the 14th section of the act of 1831 (3 Chase, 1787), and the 12th section of the act of 1824, are alike. Their construction is settled, in Bailey v. Bailey, 8 Ohio, 239, and Meese v. Keefe, 10 Ohio, 362, to be, that a foreign will, to be valid and operative to pass title to property in Ohio, must be executed according to the laws of Ohio.
    This will, therefore, can not, by any possibility, be brought within the provisions of the 52d section of the act of 1852, which only applies to wills which would be valid here if executed according to the laws of Yirginia.
    It would be monstrous to hold that this section changed the law in regard to foreign wills as it existed from 1824 to 1840, and made-valid all the wills executed during a period of sixteen years, which were void before the passage of the law of 1852.
    If a foreign will may be contested at-all in our courts, its validity as a will in the state where executed and. proved is directly put in-issue. And, under the law of 1840, this is the only question in issue.
    The judgment of a Yirginia court on the validity of a will which disposes of land in Ohio, has just such force as the laws of Ohio-give it, and no more.
    *The repealing clause of the act of 1852, saves all rights-a'cquired under the laws repealed. If we had a right to contest this will, by the laws in force at the time of the passage of the act of 1852, that right was saved by this repealing clause.
    As to the limitation for the contest of wills: The statute saves the rights of infants and married women; and one or more of the plaintiffs are still married women. And where one of the contestants is within the saving clause of the statute, the case is saved as. to all. Meese v. Keefe, supra.
    
   White, J.

We do not propose to review, in detail, the arguments in this case on the numerous statutory provisions and ^authorities cited, but to state, as briefly as practicable, our opinion on the controlling questions which arise, and the grounds on which, it rests.

Two grounds are mainly relied on in support of the demurrer to-the petition, which may be substantially stated as follows:

1. That the right to contest the validity of the record made in this state, of a foreign will executed and proved according to the-foreign law, but not made in conformity to the laws of this state, in force at the time it took effect, has been abolished.

2. If the above proposition be not maintainable, and the right still exists, that it is barred under the act of March 20, 1849, to amend the act relating to wills, passed March 23,1840. 2 Curwen’s* Stat. 1478.

Before undertaking to dispose of either of these propositions, it is well to refer to the relation of the respective parties to the land which is the subject of the controversy between them, and to some general but well-settled principles bearing on their respective rights.

Benjamin Dawson, of Frederick county, Virginia, died, seized of these lands, about the year 1827; and both parties claim title from, him. The plaintiffs are his heirs at law, and claim the land as then-inheritance; the defendants, so far as concerns this case, derive their title solely under his alleged will.

It is a welbsettled principle of public law, that the acquisition *of real property, whether by descent or by devise, is governed by the lex rei sitae. If the party claims by inheritance, he. can look alone to the law of descents at the place where the property is situate, for his muniment of title; if by devise, the law of the same place must govern as to the due execution and validity of the will.

The rights of the heir vest, eo instanti, with the death of the ancestor ; and the same rule obtains in regard to the devise of real estate. And though the rights of the heir may depend entirely upon statutory enactments, and require to be, in some sense, upheld by the statute, yet, after the right has distinctly vested it will not be affected, either by a repeal or alteration of existing statutory provisions. 1 Redfield on Wills, 413, sec. 306; Id. 398.

The same principle, so far as affects this case, is applicable to wills. The validity of the will must be determined by the law in force at the time it became operative, i. e., at the death of the testator. 1 Redfield on Wills, 406. Subsequent legislation can not vest in a supposed devisee an estate which the testator failed to give, and which, on his decease, passed to the heirs freed of any valid testamentary disposition; for, if this could be done, it would be the taking the property of one person without his consent, and giving it to another.

It is true, that before a will can be made available as evidence, it is generally required to be admitted to probate, and in case of a foreign probate, to be admitted to record in the forum rei sites; but when so admitted to probate and record, it relates back to the death of the testator, and takes effect from that time. Hall et al. v. Ashly & Cravin, 9 Ohio, 96-99.

What, then, was the law of Ohio, in regard to the execution of wills to affect lands in this state, at the time of the death of Benjamin Dawson ?

By the act relating to wills of March 23,1840 (1 Ourwen’s Stat. 685), a change was made in the law in regard to the execution both of domestic and foreign wills. Under this act wills were to be “signed at the end thereof,” which was not required in the prior acts of 1824 and 1831; and foreign wills, executed and proved according to the foreign law, were authorized to be admitted to record in this state, and when so ^recorded were to have the same validity, in law, as domestic wills.

The act of 1824 (2 Chase, 1305), and the act of 1831 (3 Chase, 1785), like the act of 1840, required the will to be attested by two subscribing witnesses; but, in regard to foreign wills, the act of 1831, as construed in Baily v. Baily (8 Ohio, 239), and in Meese and wife v. Keefe et al. (10 Ohio, 362), required them to be executed in conformity to the law of this state, and if not so made, they were not authorized to be admitted to record in this state. The construction put upon this act in the two cases referred to, in regard to the execution of foreign wills, has become a rule of property, and may be regarded as settled. The same construction must be put upon the act of 1824, for, in this respect, the provisions of the two statutes are identical.

The execution and validity of the alleged will of Benjamin Dawson are governed by the act of 1824. It relates entirely to lands, in this state, is without witnesses, and not being in conformity to cur law, is inoperative to pass or affect the property to which it relates.

This property, therefore, descended to the plaintiffs unaffected by any testamentary disposition.

But an authenticated copy of this writing, and of what is claimed to be its valid probate in Virginia, was, however, in fact, though improperly, admitted to record by the court of the proper county, in the year 1850; and it is claimed that, on being so admitted to record, it became operative as a will, and could only be impeached on a statutory contest in a suit regularly instituted for that purpose, in the mode prescribed for contesting domestic wills. This is the character of the present suit; but it is further insisted that this right has been taken away by the fifty-second section of the act relating to wills, of May 3,1852 (2 S. & C. Stat. 1626; 3 Curwen’s Stat. 1911), which provides : “ That no proceeding shall be had in this state, to contest a will executed and proved according to the law of any state or territory of the United States, or of any foreign country, relative tó property in this state; but if the said will shall Be set aside in the state, territory, or country *in which it is ■executed and proved, the same shall be held of no validity in this state.”

This provision of the statute, in our opinion, has reference to such foreign wills as, when made in accordance with the foreign law, are, by the laws of this state, valid to dispose of property situate in this state, and does not apply to cases arising under former laws, of wills valid where made, but inoperative here because not •executed according to our law.

The object of the provision in question, is to transfer the contest from the forum rei sitce to the forum loci acti. But where the ground ■of contest, or the objection to the will, consists of defects in its execution, fatal to its validity in this state, but which can not be made available in the state where the will is made, the case is one to which the statute does not apply. The effect is to withdraw the authority to adjudicate on the subject-matter from our own courts .so far only as such authority exists and can be made available in in the foreign forum.

The construction we put upon the provision relied on in the act of 1852, renders it unnecessary to consider whether a writing like the one in question, can derive any efficacy from being admitted to record; or, if it is to become effective by that means, whether it would not be the duty of the court admitting it to record, on application, to vacate the order allowing it.

Before its admission to record it was legally incapable, properly, •of becoming an operative will, by reason of fatal omissions in its •execution, apparent on its face. The proceeding by which it was admitted to record, was in its nature ex parte, and if it is to have the effect of divesting the heirs of their estate, they clearly have the right to have it set aside.

And without deciding that resort to the statutory mode provided for contesting wills is necessary to set aside or declare invalid such record, yet, where the aggrieved party has resorted to -that mode of proceeding, his petition will not on that ground be dismissed, as such suits have been repeatedly entertained for that purpose. Baily v. Baily; Meese and wife v. Keefe et al., supra; and Manuel v. Manuel, 13 Ohio St. In Baily v. Baily it was said to be the necessary mode. Meese *and wife v. Keefe was a suit of that character, as was also the case of Manuel v. Manuel; though, in the case last named, the invalidity of the will or ground of contest was not apparent on the record, and the case came before this court only on a question of law arising on a state of fact specially found in the court below.

The remaining question is, whether the right of the plaintiffs is barred under the act of March 20, 1849, to amend the act relating to wills, passed in 1840. We are of the opinion that it is not. That act has no application to cases, like the present, arising under statutes prior to the act of 1840, where the will, though made and proved according to the foreign law, is inoperative on property situate in this state, and not authorized to be admitted to record here for want of conformity to our law. The act is intended to apply to the case of foreign wills made and proved in accordance with the foreign law, and which, when so made and proved, are authorized to be recorded, and to operate in this state. And the probate and rejection of the will therein referred to has reference to its probate or rejection in the foreign forum alone.

Demurrer overruled, and cause remanded to the district court.

Day, C. J., and Welch, Brinkerhoef, and Scott, JJ., concurred.  