Case v. McGee

8 Md. 9 | Md. | 1855

Mason, J.,

delivered tire opinion of this court.

The only question involved in this record is, whether the transcript of the will of Mary Ann Case, and the proceedings thereupon, in 'Warren county court, Virginia, were properly and duly authenticated, so as to make them admissible evidence in the courts of Maryland: and this involves the further inquiry, whether they are “ records and judicial proceedings” of a court within the meaning of the act of Congress, passed May 26th, 1790, relating to the authentication of public records? &c.

The probate and- recordation of this will, as appears from the certificate, are themselves judicial acts. The will being the foundation or basis of the whole proceeding must be treated as part of the proceedings themselves, and is therefore properly authenticated under the act of 1790.

The act of 1790 rests upon the assumption that a proceeding of a court of a different State, if authenticated according to that act, is warranted by, and in accordance with, the laws of that State, and from this proceeding it appears, that probate and recordation of the will are both necessary to give it vitality. Therefore we are to assume that a mere authenticated copy of a will, without any thing more, would not be sufficient, because it would not therefrom appear to have been admitted to probate and record in drre course of law by the proper tribunal. Without these legal attributes it could not have had the effect of a valid will in Virginia, and therefore, when authenticated without these acts appearing to have been done, could not have any legal effect in this State. These acts being judicial proceedings, could only be authenticated in the manner pointed out by the act of 1790. 1 Rawle’s Rep., 386.

The paper offered in evidence in this case, as appears from its face, is not a mere exemplification of a record or office book, not appertaining to a court, within the meaning of the act of Congress of March 29th, 1804. As has airead}' been said, but for the judicial action of the court, this will would not have been a part of the records or proceedings of the court, and therefore not embraced within that act, which relates to the authentication of papers which are admitted to record as a matter of course, and not in virtue of any judicial mandate.

It lias been said that tbe certificate of tbe clerk of Warren county court, is not full and specific enough to gratify the act of 1790. Though it may not have been, strictly speaking, a literal compliance with the law in this particular, nevertheless we think it a substantial compliance, which is sufficient. Washington vs. Hodgskin, 12 Gill & Johns., 356. Warner vs. Hardy, 6 Md. Rep., 525.

Judgment reversed and procedendo awarded,.