Appeal from an order overruling a motion to strike objections to petition for probate of the alleged last will and testament of Mary E. Barrie, deceased.
Mary E. Barrie, domiciled in Whiteside County, Illinois, died owning real and personal property in Illinois and real property in Tama County, Iowa. The instrument in question was offered for probate in Whiteside County, Illinois. Although first admitted to probate, it was later denied probate after the Illinois Supreme Court had ruled that said instrument had been revoked by cancellation and that decedent died intestate.
Thereafter the instrument was offered for probate in Tama County, Iowa, by one of the beneficiaries named therein. To the petition for probate, decedent's heirs at law filed objections based upon the judgment of the Illinois Supreme Court, to the effect that the said last will and testament had been revoked. Objectors assert that this judgment is conclusive upon the Iowa courts. Proponent's motion to strike said objections for the reason that they do not constitute a valid basis for denying probate, being overruled by the trial court, this appeal was taken.
The instrument offered for probate was duly signed by decedent and witnessed by two witnesses. By the terms thereof all property was to be converted into cash and distributed to the named beneficiaries, including appellants. When found, after the death of decedent, the instrument had the word "void" written across its face in at least five places, including the attestation clause. Also, upon the cover and upon the envelope containing same appears the word "void" written with the name "M.E. Barrie" and "Mary E. Barrie." The Illinois court *Page 434 found that the writing of the word "void" on the instrument, as above related, constituted a revocation by cancellation within the purview of the Illinois Revised Statutes, 1945, chapter 3, section 197. This statute provides for the revocation of a will, "* * * (a) by burning, cancelling, tearing, or obliterating it by the testator."
No question is raised as to the due execution of the instrument either under the Illinois or the Iowa statutes. No question is raised as to the testamentary capacity of decedent, nor is it claimed by the objectors that there has been a revocation under the Iowa statute, section 633.10, Code of 1946. The question before this court for determination may be stated thus, "Is the judgment of the Illinois court, holding that said instrument had been revoked and that decedent died intestate, conclusive and binding upon the Iowa courts?"
Section 604.3. Code of 1946, provides:
"The district court of each county shall have original and exclusive jurisdiction to:
"1. Probate the wills * * * of nonresidents of the state who die leaving property within the county subject to administration * * *."
Decedent was a nonresident of the state and died owning property in Tama county which was subject to administration. Clearly the district court of Tama county has original jurisdiction to probate this instrument unless the Illinois judgment has the effect of nullifying or modifying said statute. See In re Will of Longshore, 188 Iowa 743, 176 N.W. 902. That this is in accordance with the recognized rule, see Restatement of the Law, Conflict of Laws, section 469, which states: "The will of a deceased person can be admitted to probate in a competent court of any state in which an administrator could have been appointed had the decedent died intestate", and under comment c of said provision: "Probate in a state other than at the domicil can be had although the will has not been admitted to probate in the state of the decedent's domicil." See also annotation in 119 A.L.R. 491, and authorities cited therein.
Section 633.33, Code of 1946, provides: "A will probated in *Page 435 any other state or country shall be admitted to probate in this state, without the notice required in the case of domestic wills, on the production of a copy thereof and of the original record of probate."
Upon the general question as to the validity, operation, effect, etc. of a will by which property is devised, there are certain well-established and generally recognized rules, and which definitely differentiate between movable (personal) and immovable (real) property. We are only concerned with immovables in the instant case.
[1] The general rule as stated in Story on Conflict of Laws, Eighth Ed., page 651, is, "the doctrine is clearly established at the common law, that the law of the place where the property [speaking of real (immovable) property] is locally situate is to govern as to the capacity or incapacity of the testator * * * the forms and solemnities to give the will or testament its due attestation and effect." 4 Page on Wills 688, section 1633, states the rule: "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." Restatement of the Law, Conflict of Laws, section 249, states: "The validity and effect of a will of an interest in land are determined by the law of the state where the land is." Upon the specific question as to revocation of a will, 2 Beale, Conflict of Laws, section 250.1, page 972, states: "The revocation of a will is governed by the law of the state of situs of the land." Restatement of the Law, Conflict of Laws, section 250, says: "The effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is." See also 11 Am. Jur., Conflict of Laws, section 178. That Iowa recognized the above rule, see Otto v. Doty, 61 Iowa 23, 15 N.W. 578; Olson v. Weber, 194 Iowa 512, 516, 187 N.W. 465, 467, 27 A.L.R. 1370, where we said:
"It is a universal rule that title to real estate can be determined only in the forum in which the land is located. If this were not true no landowner within that forum would ever be certain of his title. * * * The disposition of real property, *Page 436 whether by purchase or descent, is subject to the government within whose jurisdiction the property is situated."
See also In re Estate of Warner, 209 Iowa 948, 229 N.W. 241; Scofield v. Hadden, 206 Iowa 597, 220 N.W. 1; Norris v. Loyd,183 Iowa 1056, 168 N.W. 557; Ehler v. Ehler, 214 Iowa 789, 243 N.W. 591; Jackman v. Herrick, 178 Iowa 1374, 161 N.W. 97; 50 C.J.S., Judgments, section 898.
[2] Under the above-stated rule Iowa courts are free to place their construction, interpretation and sanction upon the will of a nonresident of the state who dies owning real property within the state whether the will be admitted to probate under section 604.3 or section 633.33, Code of 1946, both supra, although it has been admitted to probate in the state of the domicile of testator. Otto v. Doty, supra; Lynch v. Miller, 54 Iowa 516, 6 N.W. 740; Norris v. Loyd, supra; section 633.34, Code of 1946.
[3] Does a different rule pertain where instead of being admitted to probate in the domicile state probate is denied? We think not. It is generally held that the full faith and credit provision of the Constitution of the United States, Article IV, section 1, does not render foreign decrees of probate conclusive as to the validity of a will as respects real property situated in a state other than the one in which the decree was rendered, nor does the doctrine of res adjudicata or estoppel by judgment apply. See Robertson v. Pickrell, 109 U.S. 608, 3 S. Ct. 407, 27 L. Ed. 1049, where the court said the probate established nothing beyond the validity of the will in that state, and while conclusive there, the full faith and credit clause and the Act of Congress enacted pursuant thereto did not require that they shall have any greater force and efficacy in other courts than in the courts of the state from which they were taken, but only such faith and credit as by law and usage they had there. Dibble v. Winter, 247 Ill. 243, 93 N.E. 145; Norris v. Loyd, supra; McCormick v. Sullivant, 10 Wheat. (U.S.) 192, 6 L. Ed. 300.
While instances where the will disposing of real estate in another state has been denied probate in the domicile state are few, and we find no Iowa cases upon this point, the question has been passed upon by courts of other jurisdictions. In the case *Page 437 of Doe ex dem. Pritchard v. Henderson, 2 Penne. (Del.) 553, 563, 47 A. 376, 379, the court said:
"While the Maryland court had full jurisdiction to find that the alleged will, so far as it related to the testator's personal property and her lands in Maryland [domicile state], was procured by fraud and undue influence, and that she was not of sound and disposing mind and memory, it had no jurisdiction whatever to make a conclusive determination as to these facts or any otherfacts touching the validity or invalidity of the paper, so far as the same relates to the title to the land in Delaware." (Italics added.)
In In re Estate of Barrie, 331 Ill. App. 443, 447,73 N.E.2d 654, 656, where the question was as to the right of the county court to permit the removal of the original will in question from its files, the court said:
"The title to and disposition of real estate either by deed or will is governed by the law of the state where the land is situated. Mary E. Barrie owned real estate located in Iowa, and the disposition of this real estate is governed by the laws of that state. Any order denying that will admission to probate in Illinois does not affect the title of her real estate located in any other state."
See also McGehee v. McGehee, 152 Md. 661, 136, A. 905; McGehee, v. McGehee, 189 N.C. 558, 127 S.E. 684.
Appellant places particular stress upon the case of Trotter v. Van Pelt, 144 Fla. 517, 522, 198 So. 215, 217, 131 A.L.R. 1018. The case is, in many respects, similar to the one at bar. In that case, testator was domiciled in Virginia and owned land in Florida. His will was denied probate in Virginia as an attested instrument, the Virginia court holding that, though properly executed, it had, because of certain changes and interlineations, made subsequent to its execution, been revoked under the laws of Virginia. It was admitted, however, as a holographic will. Thereafter it was filed for probate in Florida. Objections were filed setting up the Virginia judgment as a bar to the *Page 438 Florida proceedings. The trial court upheld objectors and on appeal the judgment was reversed.
The court recognized and applied the general rule of lex loci rei sitae and held that the Virginia judgment did not operate extraterritorially and was not binding upon the Florida courts so far as the real estate in Florida was concerned. It said:
"If the courts of Florida are precluded from determining the status of the Triplett will as to real estate in Florida, then the lex loci rei sitae is controlled by the Virginia decisions. The right to contest a will of real estate is not local but is incidental to the parties, the realty, and the jurisdiction where the latter is situated. It follows that when a testator executes a will devising lands in two or more states, the courts in each state will construe it as to the lands located therein as if devised by separate wills." (Citing cases.)
The instant case and the cited case may be different as to the facts attending the revocation. In the instant case, we assume that the acts committed by testatrix and which constituted the revocation under the Illinois statute were done with intent to revoke, in view of such a finding by the Illinois court. In the cited case, the finding of the Virginia court upon this question does not appear.
We deem it to be immaterial to the deciding of this appeal whether the thing which constituted the revocation was by operation of law, the act done being incidental thereto (such as a marriage when the law makes same a revocation of a prior will) or whether the act was done for the express purpose of revoking, as assumed in the instant case. The basis advanced for denying the jurisdiction of the Iowa court is not the specific act of "canceling" but is the judgment of the Illinois court that the instrument was revoked.
[4] As stated in 1 Page on Wills, section 533, page 999, "A will which has been revoked totally is of no legal effect", and if under the laws of the state the act done or the situation which arises constitutes a revocation, it is, so far as said state is concerned, of no legal effect. To hold that an act which constitutes a revocation in one state is a revocation in another state *Page 439 where under the law the act does not constitute a revocation is contrary to the general rule, which is stated in 57 Am. Jur., Wills, section 493, to be, "where a statute prescribes the method and acts by which a will may be revoked, no acts other than those mentioned in the statute are to operate as a revocation, no matter how clearly appears the purpose of the testator to revoke his will and his belief that such purpose has been accomplished." See also 57 Am. Jur., Wills, section 455; Restatement of the Law, Conflicts of Laws, section 250; Gay v. Gay, 60 Iowa 415, 14 N.W. 238, 46 Am. Rep. 78. That the acts held to be a revocation in Illinois do not constitute such in Iowa, see section 633.10, Code of 1946; Blackett v. Ziegler, 153 Iowa 344, 133 N.W. 901, 37 L.R.A., N.S. 291, Ann. Cas. 1913E 115; In re Will of Rutledge,210 Iowa 1256, 232 N.W. 674.
[5] Section 633.49, Code of 1946, 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."
This statute has not been before this court, so far as the writer of this opinion can find. It is clearly a modification of the common law and should not be extended to include matters not clearly included therein. It specifically deals with the formalities in the execution of the will, and nothing more. No question of execution is here involved. That the legislature might have waived the common-law rule as applicable to revocations as well as to the formal execution, as it has done, cannot be denied. However, the legislature has not seen fit to do so. See State ex rel. Ruef v. District Court, 34 Mont. 96, 85 P. 866, 6 L.R.A., N.S., 617, 623, 115 Am. St. Rep. 510, 9 Ann. Cas. 418. The statute is not applicable.
[6] Assuming the instrument creates an equitable conversion of the realty into personalty, that fact is immaterial to *Page 440 the question before this court since the question presupposes the existence of a formally valid will executed by a competent testator. See annotation 2 L.R.A., N.S., 408, 457; Restatement of the Law, Conflict of Laws, sections 209, 244 and 249; Norris v. Loyd, 183 Iowa 1056, 1061, 168 N.W. 557, 558, which states: "An equitable conversion is a legal fiction, and is simply anticipatory of an actual conversion. There could be no actual conversion without a transfer of the title, and there could be no legal transfer of the title, except in pursuance of Iowa Law."
[7] We hold that the Illinois judgment denying probate to the will in question is not conclusive and binding upon the courts of this state in so far as the disposition of the Iowa real estate is concerned; that the objections filed to the petition do not constitute a basis for denying probate of the will and the appellant's motion to strike should have been sustained. Reversed and remanded for an order in accordance herewith. — Reversed and remanded.
OLIVER, BLISS, GARFIELD, and WENNERSTRUM, JJ., concur.
SMITH, J., and MANTZ, C.J., and HALE and MULRONEY, JJ., dissent.