James Denison, Counsel for Absent Heirs of Ira Ingram, v. Seth Ingram, 1 Dallam 519

HEMPHILL, Chief Justice.-—Seth Ingram filed bis petition in the court of probates for the county of Matagorda in the year 1841, praying to be duly recognized as the sole heir of Ira Ingram, his brother, deceased, and put in possession of his succession with the benefit of an inventory.

He alleges that the said Ira Ingram departed this life intestate, or leaving no legal or valid will at the time of his death; that for the purpose of collecting the effects of the estate of the said Ira Ingram and of paying the claims against the same, the petitioner administered on the said estate, according to the form, terms, etc., prescribed to him by the judge of the probate court for the said count}7, etc.

The petition was demurred to by James Denison, attorney for the absent heirs of the said Ira Ingram, deceased, and the same being overruled, a plea was then filed by way of exception, alleging that the said Ira Ingram at his death left a document purporting to be a will; that said document had been presented to the probate court for the county of Mata-gorda, for probate as a will; that said court upon proof offered admitted the same to probate as a will and declared the same to be the last will and testament of the said Ira Ingram, deceased; that the same is recorded in the records of the said court; that the probate has never been impeached, and that the said Seth Ingram has acted as executor under said will.

The replication to this states substantially that the said Ira Ingram did die intestate, and that the document referred to in defendant’s answer was not by the law of the land a will or testament and the same is null and void, and further that the said will has never been admitted to probate or decreed to be executed, according to the law of the land. The defendant joins issue on the second count of the replication, and excepts to the first as raising a collateral issue.

It was admitted that Seth Ingram was the sole heir of the whole blood of the said Ira Ingram, deceased, but that there was a brother of the half blood, or his heirs, in th 3 United States of America. The petition was dismissed in the probate court. On appeal to the district court the decree of the court of probate was reversed, and the cause has been brought to this court for final decision.

From an examination of the pleadings in the above cause, it appears that issue has alone been joined on the question of fact, whether or not the document purporting to be a will of Ira Ingram, deceased, has been admitted to probate and established as his last will and testament, by the court of probate for the county of Matagorda. The question of the validity of the will was not properly raised by the pleadings, and the objection that the issue thereon was collateral was well made by the defendant.

On examining the record for the evidence adduced in relation to the question of probate, or not, of the will, we find that on the 25th of September, 1837, Seth Ingram by petition to the probate court for the county of Matagorda, stated, at the death of his brother, Ira Ingram, that his last will was left in the hands of A. L. Clements, and prayed that the same might be produced for promulgation. In conformity with an order from court for that purpose, the will and codicil thereto were produced on the 26th of September; they were; opened and read aloud by the judge.

Evidence was taken to establish their execution by the testator, and in the words of the record, “the judge signed at top and bottom of each page of the will, agreeably to law.” The will was filed and recorded, and on petition from the said Seth Ingram and Spencer H. Jack, they were appointed dative testamentary executors, or administrators with the will annexed, to carry the said will into execution. They took the necessary oaths and gave the bonds required by law.

On a careful consideration of the proceedings before the probate court, we are of opinion that they furnish sufficient evidence of the probate and establishment of the said document as the last will and testament of Ira Ingram, deceased. Under the common law, the granting of letters testamentary is conclusive ¡iroof of the probate of a will. It is true that we find no order directing in express terms the will to be carried into execution. But we can not regard such an entry in so many terms, as absolutely essential to the validity of a judgment establishing a will, as duly proven in the court of probates.

Where it appears from the proofs exhibited, as it does in this case, that the probate court received evidence as to the execution of the will, that the same was filed and recorded, that letters testamentary were granted for the purpose of carrying the same into execution, we are compelled to recognize the will as having been allowed and established by the said court. The informalities and irregularities which may appear in the entries of the proceedings of the court will not be sufficient to destroy the effect of such a judgment or rebut the presumption that the same was rendered.

The will, then, having been admitted to probate by a court of competent jurisdiction, the next question presented for our consideration is whether this judicial act of the court of probates, being unreversed, operates as a bar or preclusion of the present action. We are of opinion that it does. It is a well established rule of law that the judgment of a court of competent jurisdiction is conclusive of the rights of the parties until the same be reversed or vacated. See Brown v. Gibson and Wife, 1 Nott & McC., 326; Lucas v. Bank of Darien, 2 Stewart, 280; Dufom v. La Frane, 11 M. R., 607.

The judgment of the court of probates, being in this instance on a matter embraced within its jurisdiction and the same being unreversed, must preclude any action for the purpose of disposing of the decedent’s estate according to the laws which regulate successions, until the revocation or reversal of the said judgment. The question of whether the same can or ought to be reversed, having not been presented by the pleadings, can not properly become the subject of consideration.

The conclusions to which we have arrived, on the fact of the rendition of a judgment of a court of competent jurisdiction prohibiting the will, render it unnecessary to express any opinion as to the extent to which the laws of Louisiana were introduced in matter of probate; whether this was a will or not agreeably to the laws of the land, or whether the appel-lee has by his own acts compromitted his rights to the succession or claimed by him in this suit. These questions are not presented in the pleadings, nor can they arise as long as the judgment of the probate court remains in full vigor unrevoked.

Having inspected the record, because it seems to the court here that there was error in the judgment of the court below, it is ordered, adjudged and decreed that the same be reversed ; that the petition be dismissed, and that the appellee pay the costs of this suit. Reversed and dismissed.