In this interlocutory appeal, Nicholas Grapsas, the Illinois Public Administrator of the Domiciliary Estate of Florian T. Latek (Illinois Public Administrator), and Nicholas Padezan (collectively, Appellants) challenge the trial court’s order denying their Motion to Dismiss a Petition for Probate of Will and for Issuance of Letters Testamentary filed by James S. Bozik in the Porter Superior Court and separate order admitting to probate the Last Will and Testament of Florian T. Latek (Latek’s Will). [Footnotes omitted.] Appellants present four issues for our review, which we consolidate and restate as:
1. Do principles of res judicata or full faith and credit apply so as to preclude the probate of Latek’s Will in Indiana?
Appellants argue that the doctrines of res judicata and full faith and credit preclude the Indiana Court from determining the validity of Latek’s Will under Indiana law when the Illinois Court had already rendered a judgment refusing probate of Latek’s Will under Illinois law because the will failed to satisfy Illinois law as to proof of proper execution and attestation.
Latek’s Estate urges this court to adopt the majority rule, which provides that 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. Latek’s Estate maintains that under the majority rule, the Illinois judgment that Latek’s Will was invalid is not binding upon the Indiana court insofar as the Indiana court has been asked to consider the validity of Latek’s Will as it pertains to disposition of his real property located in Indiana.
Latek’s Estate does not dispute that the Illinois Court’s determination is binding and conclusive as to the real and personal property located in Illinois. Further, Latek’s Estate agrees that had the Illinois Court admitted Latek’s Will to probate and the Illinois Public Administrator thereafter complied with Indiana statutes by filing proof of that admission in an Indiana court, such admission would have been binding and conclusive as to Latek’s real property located in Indiana. Here, however, the Illinois Court did not admit Latek’s Will to probate. The issue thus presented is: when a testator dies while owning real property in Indiana, what is the effect of an order from the domiciliary state denying probate of a testator’s will because the will failed to meet the state of domicile’s statutory execution requirements on the disposition of real property located in Indiana?
We first consider how the majority rule has been interpreted and applied by courts across the nation. In In re Barrie’s Estate, 73 N.E.2d 654 (Ill. Ct. App. 1947), the testator owned real property in Iowa, but was domiciled in Illinois at the time of her death. After the testator’s will was denied probate in Illinois, some heirs requested that the Illinois court permit them to withdraw the will from the Illinois clerk in order to submit the testator’s will for probate in Iowa. In their petition the heirs claimed that “notwithstanding the fact that said instrument has been denied probate in Illinois it is a valid and enforceable will as to real estate in the State of Iowa . . . .” Id. at 655. The Illinois court agreed, holding that “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.” Id. at 656. The Illinois court further noted that “‘[w]here a testator, by a single will, devises lands lying in two or more states, the courts of such states will, respectively, construe it, as to the lands situated in them respectively, in the same manner as if they had been devised by separate wills.’” Id. (quoting McCartney v. Osburn, 9 N.E. 210, 212 (1886)).
In French v. Short, 151 S.E.2d 354 (Va. 1966), the testator was domiciled in Florida but also owned real property in Virginia. A Florida court determined that the testator’s purported will could not be admitted to probate in that state because it was unwitnessed and therefore did not comply with Florida’s statute of wills. The testator’s will was thereafter presented to a Virginia court for probate of the real property located in Virginia, and the Virginia court held that the testator’s will satisfied Virginia law as to the execution requirements for a will and therefore admitted the testator’s will to probate.
On appeal, it was argued that the Virginia court must give full faith and credit to the Florida court’s determination that the purported will was ineffectual to pass either real or personal property. The Virginia Supreme Court agreed that Virginia courts must recognize the Florida determination insofar as it related to the testator’s personal property. With regard to the testator’s real property located in Virginia, the court noted that Virginia law provided that real estate passes according to the law of the state where it lies. Citing Va. Code Ann. §64-55 (1950).
With regard to the Florida court’s determination, the Virginia Supreme Court noted that the Florida probate court’s inquiry was limited in that it simply inquired as to the validity of the testator’s will insofar as it affected personal property within its jurisdiction. The Virginia court thus found that the Florida court’s determination did not amount to a finding that the testator died intestate with regard to his Virginia real estate. The Virginia Court further found that Virginia has the right and power to make an in rem determination regarding whether real estate within its borders shall pass under a decedent’s will or the intestate laws of Virginia. The Virginia Court thus held: “Neither the full faith and credit clause of the United States Constitution (Article IV, Section 1), nor the principle of res judicata, requires Virginia to recognize a Florida holding that a decedent died intestate as to his Virginia real estate.” French v. Short, 151 S.E.2d at 359.
In In re Briggs’ Estate, 134 S.E.2d 737 (W.Va. 1964), the testator was domiciled in Michigan at the time of his death, and included in his estate was real property he owned in West Virginia. The Michigan courts refused to admit the testator’s will to probate because it did not comply with Michigan law as to formalities and ordered the testator’s estate be distributed through intestate succession. The testator’s will did satisfy West Virginia law, however, and was admitted to probate in West Virginia notwithstanding the Michigan court’s prior determination. The West Virginia Court held:
The general rule is that a determination of the validity or invalidity of a will by a court of the testator’s domicile is not conclusive on that question in relation to real estate situated in another state, either upon principles of res judicata or the full faith and credit provision. This is true “because (1) the foreign court has no jurisdiction or power to pass upon the title to real property not found within its territorial limits, and the constitutional provision presupposes a judgment or decree rendered by a court of competent jurisdiction; and (2) the decree of probate has no effect even in that state upon the title of real estate elsewhere, and the constitutional provision does not require the giving to foreign judgments greater effect than they have at home.”
Id. at 740. The court thus concluded that the validity or invalidity of the testator’s holographic will was to be determined by the laws of the State of West Virginia insofar as itrelated to the decedent’s real estate in West Virginia.
Other courts have addressed this issue and have reached the same result. See, e.g., Higgins v. Eaton, 202 F. 75 (2nd Cir. 1913), cert. denied; In re Gift’s Estate, 232 P.2d 328 (Mont. 1951). Recent cases have also addressed this issue and discussed the principles underlying the majority rule. See, e.g., Marr v. Hendrix, 952 S.W.2d 693, 695 (Ky. 1997)(noting that the rationale for the rule is that “the disposition of property is governed by the law of the state where property is located, rather than by the law of a foreign state. Hence, the refusal to enforce a foreign probate decree pertaining to an invalid will does not violate the full faith and credit clause”); Chaney v. Cooper, 954 S.W.2d 510, 520 (Mo. Ct. App. 1997) (“[t]he U.S. Constitution requires that judicial proceedings in other states be given full faith and credit in Missouri as they would in the state from which they had been rendered. It is universally held that for ‘a will to be of any validity as a transfer of title to land, [it] must be executed, attested, and probated in the manner prescribed by the law of the state where the land is located.’ Following this general principal of law, a state does not have to give full faith and credit to the devise of real property as a result of an adjudication of a will by another state”); In re Estate of Stein, 896 P.2d 740, 745 (Wash. Ct. App. 1995) (“[t]he courts of a decedent’s domicile do not have jurisdiction to control devolution of real property held in another state; therefore, the state in which real property is located is not required to give full faith and credit to a decision of another state regarding probate of such real property. 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”).
While both parties assert that this is a matter of first impression in Indiana, we find that Indiana has in fact already recognized and evinced an intent to follow the majority rule. In Evansville Ice & Cold-Storage Co. v. Winsor, 148 Ind. 682, 48 N.E. 592 (1897), our Supreme Court explained the difference between the treatment of personal property and real property under Indiana probate law.
The rule as to personal property is that the law of the place where the testator is domiciled at the time of his death governs as to the capacity of the testator to make a will, and as to the forms to be observed in its execution and revocation, and as to its validity in every respect. Such questions as to bequests of personal property being governed by the law of the domicile of the testator, they are adjudicated when the will is admitted to probate in such jurisdiction, and the same is conclusive. As to such property, the probate of the will in the state where the testator was domiciled at the time of his death is, under the constitution of the United States, entitled to full faith and credit in every other state. . . . But it is settled that title to and the disposition of real property, whether by deed, a last will, or otherwise, must be governed exclusively by the law of the country where it is situated. The law where the land lies governs not only as to the forms to be observed in executing the will, but as to the capacity or incapacity of the testator to make a will. . . . Title to land by devise can only be acquired when the will is duly proved and recorded, according to the law of the state in which the land is situated. The probate of a will in one state gives no title to land devised situate in another state.
Id., 148 Ind. 682, 48 N.E. at 594 (emphasis supplied). The majority rule that “the probate of a will in another state has no effect on the title of real estate in Indiana unless the will is duly admitted to probate in this state or filed and recorded as a foreign will in compliance with our laws” was also recognized in Duckwall v. Lease, 106 Ind. App. 664, 20 N.E.2d 204, 208 (1939) and more recently in Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1217 (Ind. Ct. App. 1999).
As has been applied by courts across the nation for over a century and as recognized by our Supreme Court as long ago as 1897, we conclude that Indiana adheres to the majority rule. We therefore conclude that under the majority rule, the Illinois Court’s denial of Latek’s Will to probate because it failed to comply with Illinois’s statutory execution requirements has no effect on the subsequent admission and probate of Latek’s Will in Indiana as it concerns the disposition of real property located in Indiana. Principles of res judicata and full faith and credit have no application in matters involving probate and title to realty.
Appellants cite In re Nye’s Estate, 299 N.E.2d 854 (Ind. Ct. App. 1973) in support of their claim that res judicata and full faith and credit require dismissal of the probate petition. We find that case inapposite to the issue now before us. In Nye’s Estate, the issue before the court was whether principles of res judicata prevented the relitigation in the Indiana court of the determination by a Florida court that the decedent’s Florida will was valid under the laws of Florida. The Nye court held that under principles of res judicata and collateral estoppel, the Florida court’s determination as to the due execution of the Florida will was binding on the Indiana court. The Nye court was not called upon to determine the validity of a will in Indiana for purposes of passing title to real estate located in this State. The Nye court’s holding is not inconsistent with and does not affect application of the majority rule set forth above.
We further disagree with Appellants that Indiana’s foreign wills statutes preclude an Indiana court from determining the validity of a will as it relates to disposition of real property located in Indiana where such will disposing of such property has been found void under another state’s laws. As noted above, Indiana case law recognizes that “the probate of a will in another state has no effect on title of real estate in Indiana unless the will is duly admitted to probate in this state or filed and recorded as a foreign will in compliance with our laws.” Estate of Hofgesang v. Hansford, 714 N.E.2d at 1217.
To be sure, the Indiana Probate Code, adopted in 1953, provides a mechanism by which a foreign will admitted to probate in another state can be filed and recorded in Indiana such that the determinations as to a will’s admission to probate by foreign courts are applicable in this state. Ind. Code Ann. § 29-1-7-25 (West, Westlaw current through 2011 1st Regular Sess.) provides: “Any will that has been proved or allowed in any other state or in any foreign country, according to the laws of that state or country, may be received in this state within three (3) years after the decedent’s death . . . .” I.C. §§ 29-1-7-26 and -27 set forth the manner in which a foreign will is received and recorded in this state. A copy of a foreign will and the probate thereof may be presented to a court in a county having jurisdiction, and
if said court shall be satisfied that the instrument ought to be allowed as the last will of the deceased, such court shall order the same to be filed and recorded by the clerk, and thereupon, such will shall have the same effect as if it had been originally admitted to probate and recorded in this state.
I.C. § 29-1-7-27.
We agree with Latek’s Estate that the foreign will statutes are not applicable to the instant case for the simple reason that Latek’s Will was not proved or allowed by the Illinois Court. By the clear words used in the foreign wills statute, foreign wills can be received and recorded by an Indiana court only where they have been proved and allowed by the foreign court. The converse is that a foreign will that is not proved and allowed may not be received and recorded by an Indiana court under the foreign wills statute. There is no other provision within the probate code that sets forth the manner in which a will not proved or allowed in a foreign state can be recorded in Indiana.
We do not agree with Appellants’ contention, without citation to authority, that this interpretation of the foreign wills statute simply “cannot be so.” Appellants’ Brief at 16. Indeed, we find the analysis of the Kentucky Supreme Court rejecting the contention advanced here by Appellants to be persuasive. In Second Nat’l Bank of Ashland v. Thomson, 455 S.W.2d 51 (Ky. 1970), the testator owned real property in Kentucky but was domiciled in Texas at the time of his death. A Texas court declared the decedent’s will to be void and refused to admit the purported will to probate. The Kentucky Supreme Court addressed the issue of whether Kentucky courts should give full faith and credit to foreign judgments that may affect the title to real estate in Kentucky. The court noted that statutory provisions related only to the filing and recording of foreign wills probated in another state. The statutes were silent, however, as to a will that has been held void and refused probate by another state. Because of the absence of statutory provisions on how to handle a will that has been found void by another state, the court therefore concluded that the Kentucky court need not give full faith and credit to the judgment of the Texas court determining the decedent’s will to be void.
We interpret the Indiana foreign will statutes as reaching the same result. The Indiana statutes are silent as to the manner in which a foreign will determined to be void in a foreign state can be recorded in an Indiana court. The majority rule fills this gap by providing that the effect of another state’s determination that a will is invalid has no effect on the validity of the will in Indiana as it pertains to the disposition of real property located in Indiana.
DARDEN, J., and VAIDIK, J., concur.