I am unable to agree with the majority opinion. It perpetuates an anomalous confusing legal situation which our own statutes seem clearly designed to remove and which judicial thinking should seek a way to avoid. The importance of the question involved justifies, even requires, a statement of the grounds of dissent.
Appellant has litigated in the state of decedent's domicile the very issue it presents here, viz.: Is the instrument in question her will or did decedent die intestate? The Illinois court held there had been a revocation. In re Barrie's Will, 393 Ill. 111,65 N.E.2d 433. Unfortunately the method of revocation adopted by decedent does not comply with our revocation statute though recognized in Illinois.
I. Appellant claims (and the majority opinion holds) the Illinois decision does not render the question res adjudicata here because, as to real estate, at common law the "lex loci rei *Page 441 sitae" (the law of the place where a thing is situated) governs as to "the forms and solemnities" necessary to give a will "its due attestation and effect," citing Story on Conflict of Laws, Eighth Ed., 652, and other texts; and because, since decedent owned Iowa land, the question whether she had effectively revoked the instrument can be relitigated here and must be determined under our laws relating to domestic wills.
No contention is or could be made that this would be true if her Iowa property was personalty only. 15 C.J.S., Conflict of Laws, section 18f. The proposition is based squarely on decedent's ownership of real estate in Iowa. The distinction is significant of the historical situation (now nonexistent) out of which it arose — the fact that wills devising real estate were originally solely cognizable by courts of law, while testaments bequeathing personal property were within the exclusive jurisdiction of the ecclesiastical courts. In re Goldsticker's Will, 192 N.Y. 35, 84 N.E. 581, 18 L.R.A., N.S., 99, 15 Ann. Cas. 66; annotation 60 Am. Dec. 360. See also Conklin v. Egerton's Admr., 21 Wend. (N.Y.) 430, 436; Ellis v. Davis, 109 U.S. 485, 495, 3 S. Ct. 327, 27 L. Ed. 1006. The requirements necessary to give the former instruments validity as conveyances of real estate naturally became considered subject to the common law "lex loci rei sitae," while those which only bequeathed personalty were subject to or followed the rule of testator's domicile, "mobilia sequuntur personam," — movables (personalty) follow the person.
The courts and text writers who adhere to this ancient distinction overlook the profound effect of modern probate statutes that have entirely eliminated any old differences in formal requirements and solemnities as to mode of execution (and revocation) and probate procedure between "wills of personalty" and "wills of realty," as they were formerly referred to. We no longer speak of "wills of real estate" as something apart or different from "wills of personal property." The term "will" has come to include "testament." All must conform to the same statutory standards.
In 57 Am. Jur., Wills, section 938, the text writer says:
"At common law, although a will of personal and real estate *Page 442 could be probated, such probate was not conclusive as to the real estate. This rule was followed at an early period in some of our states, and in some later cases, but in most jurisdictions the distinction * * * is no longer recognized, and the probate of a will is equally conclusive as regards each class of property."
Even some of the text writers cited in the majority opinion as supporting the common-law rule indicate its subjection to statutory influence and modification. In 4 Page on Wills 688, section 1633: "At common law, if not modified by statute, the general rule * * * is that the validity, operation, effect, etc., of a will by which real property is devised is determined by the law of the place where the land is situated." See also subsequent language to the same effect on page 690, section 1634. And on page 692 (section 1635) the same author points out the obvious objections to the common-law rule and adds: "For these reasons the statutes of many states have modified the common-law rule * * * and have made it analogous to the rule on the subject of testaments of personalty by providing that if the will ofdecedent is valid by the law of the jurisdiction where he wasdomiciled * * * it shall be valid to pass land anywhere." (All italics supplied.)
The text in 68 C.J., Wills, 626, section 251, after announcing the common-law rule, adds:
"Where a statute has been enacted allowing wills executed in a foreign state or country to take effect or be probated if they are valid under the laws of such foreign state or country, or have been probated there, the validity of a will is to be testedby the law of the place of execution, as to property within thestate in which such statute is in force, even though the will wasnot executed in conformity with the law of such state." (Italics supplied.)
See also later text 68 C.J., Wills, 1242, section 1100, where the lex loci rei sitae is said to apply "in the absence of a controlling statute," and not to apply in other states understatutes. Note 96, page 1243.
In 11 Am. Jur., Conflict of Laws, section 172, after stating the common-law rule "in the absence of a local statute to the *Page 443 contrary" the author says it is competent for the legislature to change the rule and that frequently this is done indirectly "by the passage of statutes which permit the recording of authenticated copies of foreign wills admitted to probate in the foreign jurisdiction. Whether such a statute has the effect of changing the common-law rule * * * depends, of course, upon the terms of the statute", citing annotation 2 L.R.A., N.S., 426. See also annotations 2 L.R.A., N.S., 408, 424 et seq. and 6 L.R.A., N.S., 617.
II. Our own statutes seem definitely to have done away with the rule of "lex loci" (or "lex sitae" as it is sometimes referred to) in determining whether a foreign decedent has died testate or intestate, or whether a given instrument is or is not his will.
It should be emphasized the rule is still valid in ascertaining what effect is to be given the instrument once it has been foundto be a will. But we are not concerned here with the interpretation or construction or legal effect of the document in question. Before that question is reached it must first be established that it is in fact the will of Mary E. Barrie, which fact the Illinois courts have denied. Many of the cases cited by text writers in support of the rule relate to matters ofconstruction and legal effect and not to the method of execution. We are concerned here only with the rule as applied to the "forms and solemnities" required in the execution and revocation of wills. The probate of a will determines nothing but what relates to factum. Home for the Aged v. Bantz, 106 Md. 147, 66 A. 701, 703, citing Ramsey v. Welby, 63 Md. 584, 586.
Our general statute of course grants the district court of each county "original and exclusive jurisdiction" to probate the wills not only of residents of the state residing in the county, but also "of nonresidents of the state who die leaving property within the county subject to administration." Section 604.3, Code of 1946. And there are also general statutes prescribing the necessary formalities of witnessing, executing and revoking.
But these statutes must be read with others. Section 633.33 requires ex parte probate of a foreign will (that has been probated in a foreign state) "on the production of a copy thereof *Page 444 and of the original record of probate" duly authenticated, all without regard to the manner of its execution. And section 633.49 expressly provides:
"A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided said last will and testament is in writing and subscribed by the testator."
None of our statutes differentiates between real and personal property. Whatever the form of property, the same formalities for executing and revoking are required in the case of domestic wills; and there is the same recognition of the validity of a foreign will probated or executed pursuant to the law of testator's domicile whether real or personal property is or is not affected.
I find no cases construing or citing Code section 633.49, but there are decisions of other states as to the effect of comparable ones. Maryland has one (section 307) practically identical. It is discussed at length in Lindsay v. Wilson,103 Md. 252, 267, 63 A. 566, 567, 2 L.R.A., N.S., 408. In speaking of the Maryland statute as it stood before the enactment of section 307, that opinion says:
"We cannot understand, however, how any distinction can be made under this statute between real and personal property, since the Act of 1884. The same formalities were required by that Act in the execution of wills of personal property as in those of real estate * * *."
Then referring to the effect of the subsequent law (equivalent in legal meaning to our section 633.49) the Maryland court says:
"Inasmuch as the Legislature provided in sec. 307, that `Every will, and other testamentary instrument, made out of the State shall be held to be valid,' if executed as therein stated" (that is "according to the forms required by the law *Page 445 of the place where it was executed") "it cannot be said that some wills so made shall be valid, and others so made shall be invalid, without ignoring the express language of the statute."
See also Gailey v. Brown, 169 Wis. 444, 171 N.W. 945, hereinafter discussed.
In the face of our statutes it is difficult to see how we can hold the lex loci rei sitae determines the right of probate in this state of a document offered as the foreign will of a testator owning real estate in Iowa. By the express language of section 633.49 the law of his domicile or of the place where the will was executed must govern as to the manner of its execution. And where, in the jurisdiction of his domicile, probate has been granted or denied in proceedings in solemn form, we should hold the status of the instrument to be res adjudicata.
But one Iowa case is cited by appellant. It does not sustain the proposition contended for. See In re Will of Longshore,188 Iowa 743, 751, 176 N.W. 902, 905. That case concerned a purported will of an Iowa resident. It had been probated by original proceedings in Nebraska where decedent owned land. It was then sought to be probated in Iowa as a foreign will under what is now Code section 633.33. We held this could not be done, saying: "Under authority and reason * * * we hold that the place of original probate is the place of domicile." The opinion points out the distinction between probate proceedings in the jurisdiction of testator's domicile and original proceedings elsewhere, holding the latter to be in rem and affecting only the property and rights in property in the jurisdiction where the proceedings were had. Lynch v. Miller, 54 Iowa 516, 6 N.W. 740, and Otto v. Doty, 61 Iowa 23, 25, 15 N.W. 578, cite the common-law rule but were decided prior to our statute that is now section 633.49, and do not even discuss the statutes then in force.
The authorities from other jurisdictions cited by appellant and the majority opinion are not controlling here in the face of our statutes which clearly require application of the principle of res judicata, where probate has been allowed or denied in the jurisdiction of testator's domicile. There is language in In re Estate of Barrie, 331 Ill. App. 443, 447, *Page 446 73 N.E.2d 654, 656, which tends to support appellant's argument, but it is clear dictum by the Illinois (intermediate) Appellate Court, in releasing to appellant for its purpose here, the possession of the document presented here which the Supreme Court of Illinois had already held not to be a will. See In re Will of Barrie,393 Ill. 111, 65 N.E.2d 433.
The McGehee v. McGehee cases (152 Md. 661, 136 A. 905, and189 N.C. 558, 127 S.E. 684) are cited. They involved a fact situation somewhat analogous to the one here but the question we are discussing was apparently never raised either in North Carolina or Maryland. No statutes are shown similar to our own. Decedent, a resident of South Carolina, left a will with but two witnesses, whereas three were required in that state. Probate was therefore denied in South Carolina and the estate there administered as intestate property. The will was later probated in North Carolina and ancillary administration taken out in Maryland. But no question of prior adjudication (by reason of the denial of probate in South Carolina) was urged in these other states. All parties seem to have acquiesced in the common-law doctrine. No statutes comparable to ours are mentioned.
Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018, is also cited. It concerned a will (with codicils) that had been admitted to probate in Virginia as testator's holographicunattested will. See Triplett's Executor v. Triplett, 161 Va. 906,172 S.E. 162. The Virginia court had denied probate of the main will as an attested holographic will because of unattested alterations made in it by testator.
The Florida court held the Virginia decision as to attestation did not render the question res adjudicata in Florida, that the "full faith and credit" provision of the Constitution of the United States did not apply, that the lex loci rei sitae controlled and that the will was effective to devise Florida real estate.
These cases merely repeat the common-law doctrine and refer to no such statutory provisions as ours.
III. It is true of course that Code section 633.49 refers toexecution and not directly to revocation; and we have here a document, held in Illinois to be nontestamentary, because of *Page 447 revocation and not because of any defect in original execution. In other words, we have an instrument not merely "executed" but also revoked "without this state, in the mode prescribed by the law * * * of the testator's domicile."
But revocation is merely the converse of execution. The power to execute implies the power to revoke. A will can no longer be said to be executed after it has been revoked. Whether an instrument is a will is determined not only by the manner of its execution but also by the manner of its attempted revocation. Both acts are a part of the testamentary process. It is unthinkable that our legislature intended to require recognition of the laws of another jurisdiction in the matter of one and not of the other.
In Gailey v. Brown, supra, 169 Wis. 444, 450, 171 N.W. 945, 947, the Wisconsin court was considering statutes analogous to ours which directly referred only to the recognition of willsproved in another state, and not to the rejection of those whose probate had been refused because of revocation under the laws ofthe foreign jurisdiction. After holding these statutes had modified the rules of the common law and had committed to the courts of testator's domicile the primary determination "as to the form and mode of the execution of foreign wills devising real estate in Wisconsin," that court said:
"The determination of these questions legally and necessarily includes the inquiries by such foreign courts whether or not testator made a valid will and, if so, whether it had beenlegally revoked before his death; and such judgment of the courts in sister states is to be accepted here as fixing the status ofthe instrument propounded as a will * * *. * * * it results from this statutory modification of the common law that the question whether or not a purported will has been revoked is necessarily an inquiry in such foreign probate proceeding and is committed to the court of testator's domicile for determination under the law of his residence." (Italics supplied.)
The purpose of both Code sections 633.33 and 633.49 must have been to abolish or minimize confusion and conflict between states in the matter of handling wills. Foreign ownership of property has become common. Owners of property in different *Page 448 jurisdictions should not be required in making and revoking their wills to do more than comply with the law of their own domiciles, or with the law of the jurisdiction where the instrument is drawn or revoked. As said by one author:
"If a testator has any knowledge of the formalities of executing a will his knowledge is generally confined to the law of his own domicile, or to the law of the place where he makes his will, if he relies upon local advice * * *. It may not even be possible to obtain legal advice as to the formalities necessary, by the laws of some remote country, to the validity of a devise of land situate there." 4 Page on Wills, Conflict of Laws, 692, section 1635.
IV. I conclude we are required under Code section 633.49, in connection with other statutes I have cited, to determine the status of the offered instrument by the law of decedent'sdomicile. If there had been no determination of the question in Illinois the issue would of course have to be adjudicated in Iowa. The Iowa court, in that event, would have to construe and apply the Illinois statutes on execution and revocation and decide by that standard whether the document was the will of decedent.
But that issue has been adjudicated. The Illinois court has spoken. The judgment of a probate court, within the scope of its jurisdiction, is conclusive upon the parties, just as is the judgment of any other court. 50 C.J.S., Judgments, section 605; 30 Am. Jur., Judgments, section 163; 68 C.J., Wills, 1240, 1241.
The fundamental error in the majority opinion is in assuming that the validity of an instrument offered as a foreign will is to be determined by the same standard that would determine its status if offered as a domestic will. But the Iowa statutes establish a different standard without any differentiation between real and personal property. The lex loci rei sitae is in that respect changed. Code section 633.49 is just as effective in its field as are our general statutes prescribing the forms and solemnities for the execution and revocation of domestic wills.
There is nothing sacrosanct about the "lex loci" any more than about any other common-law rule. Our statute provides: *Page 449
"The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice." Code of 1946, section 4.2.
Undoubtedly our will statutes are in derogation of the common law in many respects, not least of which is the abolition of all differences between wills and testaments as regards the method of their execution. Code section 633.49 is clearly in derogation of lex loci rei sitae as to execution of foreign wills. Its purpose is obvious. The majority opinion would construe it narrowly and technically by limiting the word "executed" to its strict and more common meaning — the performance of the acts by which the instrument is brought into being, specifically the signing and witnessing of it according to statutory requirements.
But ambiguity, justifying interpretation of a statute is not simply that arising from the meaning of particular words. It includes such as may arise in respect of the general scope and meaning of the statute when all its provisions are examined. 50 Am. Jur., Statutes, section 226, citing Coosaw Min. Co. v. South Carolina, 144 U.S. 550, 563, 12 S. Ct. 689, 692, 36 L. Ed. 537, 542.
In a narrow sense a will is "executed" when the potential testator signs it and it is duly witnessed according to statutory requirements. But a will is ambulatory and its final character is fixed only when its maker dies. It has been appropriately remarked that a will "is, in effect, reiterated as his [testator's] testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator's death." In re Will of Kopmeier, 113 Wis. 233, 239, 89 N.W. 134, 136.
It is not a strained construction therefore to say that anything done to the instrument by the testator affecting its status as a will is to be considered in determining whether he has finally executed it. And when our statute speaks of a will "executed without this state, in the mode prescribed by the law" *Page 450 of testator's domicile and provides that the instrument "shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state," we should construe it as requiring us to recognize the validity of a revocation by the testator, consummated in a mode recognized by the law of his domicile. Any other construction would render the statute impotent as to an important part of the very mischief it was plainly designed to remedy.
With apologies to the court and the profession for the (perhaps unnecessary) length of this dissent, I would affirm the decision of the trial court.
MANTZ, C.J., and HALE and MULRONEY, JJ., join in this dissent.