and in 1825, on the proper authentication, it was admitted to record in the office of the clerk of this court, without any other or further proof.

The circuit court decreed to Ewing and wife the land in Shelby, and the slave Agnes, and the children which she had borne after Moore's death.

There was no decree as to any of the estate devised in trust for Mrs. Moore; and, in consequence of an agreement of the parties, there was no decree for the profits or maintenance of the slaves.

Sneed has appealed.

The appellant insists that the proper parties have not been made; that the circuit court had no jurisdiction; and that the decree is erroneous on the merits. These objections will be examined in the order in which they have thus been presented:

I. Although Ewing is styled administrator in the bill, nevertheless, having associated his wife with him, and evidently relying solely on her right, and that which he derived by his marriage, the chancellor should regard the adjunct to his name as descriptio personæ, and decide the case as if it had not been affixed.

Bullit, Prather, and Sneed were nominated executors by the will, but none of them ever qualified. Bullit and Prather had died prior to the institution of this suit, and consequently, Sneed and Mrs. Moore on the one side, and Ewing and wife on the other, were proper, and the only proper parties.

II. If any tribunal in Kentucky had a right to adjudicate on the validity or effectiveness of the will, as to the property claimed under it in this state, the circuit court of Jefferson had jurisdiction, Sneed and the slaves all being resident in Jefferson county.

But the objection made to the jurisdiction would apply equally to any and every court in this commonwealth. It is, that the probate in Indiana is conclusive, until it shall have been reversed or revoked by the proper tribunal of that state; and that, therefore, no court in Kentucky has power to decree that there has been an implied revocation of the will.

There is a twofold answer to this objection: 1. The probate was not conclusive in Indiana; 2. If it were, it is not so here. 1. The probate was not conclusive in Indiana. As there is, in this case, no positive proof of what the law on this subject was in Indiana at the date of the probate, or since, and as we know judicially what the law of Virginia was, even whilst In

diana was a constituent part of that commonwealth, we must look alone to the common and statute law then in force in Virginia, for maintaining the position now assumed.

Until since the Norman conquest, county courts in England had testamentary jurisdiction. In the reign of Henry III., the ecclesiastical courts had, by gradual encroachments, obtained jurisdiction, which, not long afterward, became, with the exception of a few prerogative courts, exclusive. This jurisdiction was, however, confined to testaments of personal estate. The common mode of proving a will was summary and ex parte. But such a probate did not finally conclude the rights of all persons interested. It was liable to be disputed for thirty years, or to be revoked on citation, by the tribunal which had granted it: Toll. 56-76; Bac. Abr., tit. Ex'rs, E. 8; Touch. 499. A probate in the more formal and effective mode, after a sufficient citation, could not be revoked by the court which granted it, but might be reversed only by appeal, unless the will had been fraudulently proved, or had been revoked; in either of which cases the original court itself had power to vacate the probate: Toll. 74-76.

The common law, except so far as it had been modified by statute, was in force in Virginia when Indiana was a part of her domain. The only statute of Virginia, within our knowledge, which had materially modified the common law as to testamentary jurisdiction, was an act of 1748: Body of Va. Laws, 167.

That statute, which vested testamentary jurisdiction in the county courts, both as to the personalty and realty, provided that the probate should not be obligatory as to land, unless the heir or heirs had been cited by actual summons, or if unknown, by proclamation. And though it is silent as to any mode of revoking an ex parte probate as to the personalty, we are bound to consider such a probate, under the act of 1748, as no more effectual than it was at common law. As the probate of Moore'a will in Indiana was ex parte, without contestation or citation, therefore, presuming, as we must do, that the law of Virginia, as it was since 1748, was the law of Indiana, in 1807, as to probates, we arrive at the conclusion, that, as to the land, the probate of 1807 had no binding efficacy; and that as to the personalty devised, that probate was revocable by the order or decree of the court which granted it, or of some other court of original jurisdiction; and that, consequently, it was not in Indiana, even as far as it could operate, conclusive, "until

reversed by a revising court." As far as it could apply, it could not be tried incidentally, nor disputed collaterally, in Indiana or elsewhere, as long as it shall remain unrevoked and unreversed: Bac. Abr., Wills, D; Toller, 76. But, even as to the personalty devised, the probate might have been attacked and revoked by a direct and original proceeding. Whether this procedure must have been in the probate court, or might have been in a court of chancery, it is not material now to inquire. Even if the probate should be as effectual here as it was in Indiana, which is not the case, it could not affect the land; and if, as we suppose, the slaves and parties gave an incipient jurisdiction to the circuit court of Jefferson, that jurisdiction can not, for the reasons which have been suggested, be impaired or clogged by the alleged conclusiveness of the probate. Whether, therefore, the court had jurisdiction, must be ascertained by some other and surer test. This will be found in the following considerations on the second branch of the answer to the objection to the jurisdiction.

2. If the probate had been final and conclusive in Indiana, it can not be so here, as to the land and slaves which were in this state at the death of the testator.

1. Maritime courts decide according to the law of nations; and their decisions, or what must be necessarily inferred from them, will be, so far as they had jurisdiction, as to the res or subject-matter, final and conclusive wherever the law of nations is recognized, and upon all persons who were interested, and had a right to be considered as parties. As the proceedings are strictly in rem, notice served on the thing is constructive notice to all who have any interest in it; and hence, as the jurisdiction of these courts is exclusive, and they decide on a law of universal obligation, their judgments must be conclusive in the common law courts, to the extent which has been just intimated, if no further. Whether the judgments in rem of all other courts which decide, not according to the national, but the municipal or local law, should be equally conclusive, we do not now consider material; for, if they be so, the probate in this case is not of that class of judgments. The probate may be considered as a proceeding quasi in rem; but there is no attachment of the thing or the property devised, and, therefore, though all persons interested might have made themselves parties, there was not the same constructive notice as that given in maritime or other cases strictly in rem. And hence, the probate, without citation or controversy, ought not to be consid

ered as conclusive as an admiralty decision; and it may be doubted whether it should be more so than an ordinary foreign judgment: See the reasoning of the supreme court in the case of The Mary, 9 Cranch, 144. But if the probate should even be considered as any other judgment in rem, it can not operate conclusively on the property now in contest, because it was not within the jurisdiction of the court of Indiana.

Foreign laws can not per se operate extra-territorially. Land is held and alienated according to the law of the place where it is situated; and can not be held or appropriated otherwise than according to the will of the local sovereign, or the lex loci rei sita: United States v. Crosby, 7 Cranch, 115; Clark et al. v. Graham, 6 Wheat. 577; Kerr v. Moon's Devisees, 9 Id. 566; McCormick et al. v. Sullivant et al., 10 Id. 192; Vatt, b, 2, c. 8, sec. 110-114. "As the rights of a nation ought to be respected by all others, none can form any pretensions to the country which belongs to that nation, nor ought to dispose of it without her consent, any more than of the things contained in the country:" Vatt. b. 2, c. 7, sec. 80. "How could she govern herself at her own pleasure, in the country she inhabits, if she can not truly and absolutely dispose of it?" Id. sec. 83. "Every state has the liberty of refusing or granting to foreigners the power of possessing lands or other immovable property within her territory; and as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to refuse granting it, except with certain conditions annexed. Property possessed by aliens remains subject to the jurisdiction and laws of the country:" Id. sec. 114. The same doctrine, as to immovable property, is laid down in Huberus, vol. 2, b. 1, tit. 3, p. 26; and may be found in many other authorities.

At common law, probate was not evidence as to a devise of land: Tol. 70; Darby's Lessee v. Mayer et al., 10 Wheat. 165;' Carmichal v. Elmendorf et al., 4 Bibb, 485. And we have already shown that probate, under the act of 1748, had no conclusive effect as to land devised, even in Indiana, unless the proper parties had been cited. But if, as to land in Indiana, the probate had been as effectual as a probate here of a will devising land here would have been, or as the probate in any other state where the courts of probate have jurisdiction over wills devising land would have been as to land within the jurisdiction of the court, the foregoing authorities and many others

1. Darby's Lessee v. Mayer, 10 Wheat. 465.

which might be superadded, prove that it could not conclude the right to the land devised in this state. We would admit that a foreign will devising land in this state may be effectual to pass the title; but then it must be executed conformably to the law of this state. And it is clear that probate in a foreign state is not conclusive evidence that the will was so executed as to pass land here. Therefore, the foreign will must be proved as an original document on any trial involving the title to the land in this state devised by it, and must on such proof be decided by the court here to be valid and effectual, unless, according to the law of this state, there shall have been probate of it by the proper court here, or what is equivalent to such probate. If such foreign probate should be conclusive, when introduced incidentally, it could not be so when directly attacked as the foundation of a suit, or of the defense to a suit for the land: 4 Bibb, and 10 Wheat. supra. There is an essential difference between the probate and the effect of a will. And the probate in Indiana, being in the nature of a judgment in rem, can not operate conclusively on land which is in Kentucky. It can not conclude more than the jurisdiction in rem gave the court power to decide. The consequence is, that if the probate had been (as it was not) conclusive as to the property in Indiana, it could not conclude the rights of the parties as to the land in Shelby. As to that land, the will was liable to be contested whenever offered as evidence of title, unless it had been recorded in Kentucky according to her laws; and whenever so recorded, the right to contest it in chancery resulted ipso facto. So also, though not for all the same reasons, a foreign court had not, according to the common law, the exclusive or controlling power over probates or administrations, as to personal property which was in this state at the death of the testator or intestate: Tol. 72, 108; 3 P. Wms. 371; Dixon's Executors v. Ramsey's Executors, 3 Cranch, 319; Kerr v. Morrison's Devisees, 9 Wheat. 565; Armstrong v. Lear, Administrator, 12 Id. 169; Embry v. Millar, 1 Marsh. 303 [10 Am. Dec. 732].

As the probate in Indiana did not (more especially as it was ex parte) conclude the right to the property here at Moore's death; hence, if in 1807 Indiana had been a "state" in this Union, the probate there would not be conclusive here; for the probate in one state of a will devising property in another state is not as to that property effectual and conclusive, even in the state in which it was granted; and of course it can not be

1. Kerr v. Moon's Devisees, 9 Wheat. 565.