Carpenter v. Denoon et al.

children and their heirs, to be equally divided between them."

The conclusion of the will, its execution and attestation, appears in the form following:

"In witness whereof, I have hereunto set my hand and seal, this 14th day of October, 1828. The word 'my' interlined before signed.

[SEAL.]

"THOMAS PEMBERTON.

"Signed, sealed and published in presence:

"SAMUEL MILLER,

"T. FLEMING,

"ABNER NASH."

The record of the order of probate from the " proper court," duly certified, with a copy of the will, is as follows: "At a court held for Goochland county, at the courthouse, the 15th day of December, 1828, this writing was presented in court and proved by the oaths of Tarleton Fleming and Abner Nash to be the last will and testament of Thomas Pemberton, deceased, and ordered to be recorded; then, on the motion of John Pemberton, one of the executors named in the last will and testament of Thomas Pemberton, deceased, who made oath thereto, and together with George C. Puckett, Abner Nash, and Archibald Boyce, Jr., his securities, entered into and acknowledged a bond in the penalty of $40,000, conditioned as the law directs, probate of the said will was granted him in our form."

The order made by the Court of Common Pleas of Clinton county, Ohio, at the March term, 1846, admitting an authenticated copy of the will and probate to record in said court, is as follows:

"And it appearing to the satisfaction of the court that said last will and testament of said deceased was fully proved and admitted to record, on the 15th day of December, 1828, agreeably to the laws of said State of Virginia:

"The court do therefore admit the said authenticated copy of the last will and testament of said deceased, together with the certificate thereof, to record in the records of our said court here, agreeably to the provisions of the

Carpenter v. Denoon et al.

statutes of the State of Ohio, in such cases made and provided."

The following is a copy of the record of the probate court of Pickaway county, admitting to record in that court a copy of the will, and probate proceedings:

"This day came the heirs of Thomas Pemberton, formerly of Goochland county, Virginia, deceased, and produced in open court a transcript of the record and proceedings in regard to recording in the Court of Common Pleas of Clinton county, Ohio, of a copy of said will duly authenticated, and of the proceedings in regard to the proof of the original will in Goochland county, Virginia. And they produced a transcript of the proceedings in said Court of Common Pleas of Clinton county, Ohio, in regard to the record thereof, and asked the court to make a record of the foregoing transcript, which is ordered to be done accordingly. "July 31, 1868."

Upon this agreed statement of facts it is claimed that the court of common pleas erred in rendering judgment for the plaintiffs.

P. C. Smith, of Smith & Hurst, for plaintiff in error:

I. A will made in a sister state must be recorded in Ohio, before title to land vests in the devisee. Wilson's Ex'rs v.. Tappan, 6 Ohio, 172; Lessee of Swazey's Heirs v. Blackman, 8 Ohio, 18; Bailey v. Bailey, 8 Ohio, 245; 1 Redfield on Wills, 398; 1 Jarman, 1; Story on Conflict of Laws, secs. 424, 426, 474.

Prior to the wills act of 1839 (1 Curwen, 550), however valid and binding a will made in a sister state might be to pass title to property in the state where made, it was wholly void as to property in Ohio, unless made in accordance with our statutes. Bailey v. Bailey, 8 Ohio, 245; Meese v. Keefe, 10 Ohio, 362; Manuel v. Manuel, 13 Ohio St. 468; 17 Ohio St. 181.

Our statute required that a will should be attested and subscribed in the presence of the testator. It nowhere appears that this will was subscribed by these witnesses in the presence of the testator.

Carpenter v. Denoon et al.

II. Notice of the application for admission to probate should have been given by publication for three weeks to all parties interested. This was not done. It was necessary to have been done to give jurisdiction Hence, the proceedings in Clinton county are utterly valueless as a muniment of title. Wills Act, secs. 28-32, 1 Curwen, 685; Sheldon v. Wright, 1 Seld. 510; 1 Turn. & Russ. 219; 12 Eng. Ch. 219; Moore v. Starks, 1 Ohio St. 369; 3 Cow. 59; Williamson v. Berry, 17 Curtis (U. S. Cond. Rep.), 681; Borden v. Fitch, 15 Johns. 121; Biglow v. Sterns, 19 Ib. 39; Miller v. Martin, Ib. 7; 3 Ohio, 353; Sheldon v. Newton, 3 Ohio St. 499; 15 Ohio St. 485; 16 Ohio St. 193; Bloom v. Burdick, 1 Hill, 139; Benson v. Cilley, 8 Ohio St. 618; 13 Ohio St. 468; Ib. 415: 3 Seld. 431; 2 Kern. 575; 6 Abbott's Pr. 162; 2 Comst. 461; 26 Conn. 273, 3 Comst. 41; 1 Kern. 331; 9 Cow. 227; Cowen & Hill's Notes to Phil. Ev. 987, note 694, pp. 9991013; Wright, 709; Briggs v. Wardwell, 10 Mass. 356 and note; Steamboat Gen. Buell v. Long, 18 Ohio St. 521; Adams v. Jeffries, 12 Ohio, 253-274; Smith v. Rice, 11 Mass. 506; Proctor v. Newhall, 17 Mass. 91; Paine v. Morland, 15 Ohio, 435; Miami Ex. Co. v. Brown & Looker, 6 Ohio, 535; 1 Smith's Lead. Cases, 5 Am. ed., top paging 832-834 and p. 843; Holt et al. v. Lamb et al., 17 Ohio St. 375.

III. The recording this will in Clinton county being a void act, hence the subsequent recording of the proceedings had in Clinton county among the records of wills in the probate judge's office of Pickaway county, has no sort of validity.

The admission to record in this state of a will made in a sister state, is equivalent to probating a will. Act of March 28, 1849, sec. 4 (2 Curwen, 1478); Wilson v. Tappan, 6 Ohio, 172.

The existence of this will was known to and was under the control of these devisees, yet it was not probated in Ohio for more than seventeen years after the death of the testator, and for more than three years after the passage of this law, though the devisees knew of its existence during all that time and could have controlled the same.

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Carpenter v. Denoon et al.

Its probate and record after the expiration of the three years does not affect the title of the heir to lands in Ohio, as "no lands, tenements, or hereditaments shall pass to any devisee in a will, . . . unless, within that time (three years), he shall cause the same to be offered for or admitted to probate." Wills Act of 1840, sec. 34; Nowler v. Coit, 1 Ohio, 519; Wells v. Cowper, 2 Ohio, 124; 2 Redfield on Wills, 56; Robertson v. Barbour, 6 Mon. 523; Sneed v. Ewing, 5 Marsh. 460; Evans v. Anderson, 15 Ohio St. 326; Jennings v. Jennings, 21 Ohio St. 79; sec. 33 Wills Act, 2 Curwen, 689; Woodbridge v. Banning, 14 Ohio St. 331; Jones v. Robinson, 17 Ohio St. 179; 4 Ohio St. 386.

IV. The act of March 29, 1849, is a complete protection to the defendant (2 Curwen, 1478). 17 Ohio St. 183; 3 Pet. 289; Sedgwick Stat. and Con. Law, 659-663; Cochran v. Taylor, 13 Ohio St. 387; Moose v. Gold, 1 Kern. 287.

V. The title to the land vested in the heir.

At the death of the ancestor, lands in Ohio became vested eo instanti in the heir, subject, however, to be divested upon the production, probate, and record of the will of such an'cestor. Woodbridge v. Banning, 14 Ohio St. 331; 17 Ohio St. 171.

A vested right is a thing that a man has; that can be levied on and sold by an officer of the law, or that can be sold by an order of a proper court.

Until a domestic will has been probated or a foreign will has been placed on record, the legatee under such will has no rights whatever.

A mere expectation of property in the future is not a vested right. Cooley, 359. The right to take property by taking the necessary steps, or performing the necessary conditions, is not a vested right. The right given by our statutes to put a foreign will on record is a mere statutory privilege, and not in any sense of the term a vested right, for a statutory privilege is not a vested right. Cooley, 383.

There must be an unconditional, fixed right of enjoyment, either present or future, before it could be called a vested right. 4 Kent, 202; Burrell's Law Dictionary.

Carpenter v. Denoon et al.

Apply these tests to the case at bar, and the plaintiffs have no standing in court. This land never did vest in the devisees of Thomas Pemberton, the plaintiffs herein.

VI. It is a general rule that if a person have an interest less than an absolute estate of inheritance, and he attempt to convey a larger estate than he himself has, he forfeits his own interests by such assumption of greater interest than he really has.

If a tenant for life or years convey an estate in fee, the person in remainder may immediately take advantage of such forfeiture and instantly take possession, as if the particular estate has determined by efflux of time. 2 Black. Com. 174, 175; 1 Chitty's Gen. Prac. 243; 1 Wash. Real Property, 92.

The estate of the tenant for life being forfeited, the right of action accrues to the remainderman.

Henry F. Page, for defendant in error:

The will in this case was admitted to probate under the 28th section of the act relating to wills, passed March 23, 1840 (1 Curw. 685). This was regular and proper, and gave validity to the will. This section governs and applies to wills executed according to the laws of sister states and territories of the United States. Wilcox's Forms & Pr. 1848, p. 529; 2 Swan's Pr. & Pr. 1258; Jones v. Robinson, 17 Ohio St. 172; Manuel v. Manuel, 13 Ohio St. 466.

At the time the will of Thomas Pemberton was executed, the act of February 26, 1824, relating to wills (2 Chase, 1306, sec. 12), was in force, and it authorized copies of wills proved according to the laws of any state or territory of the United States to be admitted to record.

At the time this will was actually admitted to record, the act of March 23, 1840, section 28, above referred to, authorized wills executed and proved according to the laws of any state or territory of the United States to be admitted to record. It is not necessary, under the act of 1840, that a will executed in a sister state should be executed according to the laws of Ohio.