| N.C. | Dec 5, 1852
On the trial, the record shows that many questions as to the admissibility of evidence, on the part of the lessors of the plaintiff, were raised by the defendant's counsel, and by consent were reserved by his Honor, and the case allowed to proceed. Among these questions was one as to the admissibility of a copy of the will of one William Thornton, deceased, of the District of Columbia, which was offered by the lessors of the plaintiff, in deducing their title to the land in controversy. It appeared that the copy offered in evidence was certified by an officer of the District of Columbia, styling himself a register of wills, with a seal of office thereto, and also the certificate of the Secretary of State, with the seal of the United States appended, that the said officer was the register of wills in and for the said district.
There was a verdict for the lessors of the plaintiff; but his Honor, upon consideration of the said question reserved, being of opinion that the copy of Thornton's will, so certified, was not admissible in evidence, set aside the verdict, and entered judgment of nonsuit, from which the lessors appealed. (185) Several questions, as to the competency of the evidence offered by the lessors of the plaintiff, were raised on the trial below, one only of which we deem it necessary at this time to notice, as it disposes of the case for the present. The lessors of the plaintiff made title through the last will and testament of William Thornton, deceased, who, at the time of making the same, and to his death, was a citizen of the District of Columbia, where the will was made. A copy of the will was offered in evidence and objected to by the defendant, and the objection sustained by the court. The objection is, that the copy is not so certified as, under the laws of this State, to render it competent evidence. It is not pretended that the will is certified under the act *182 of Congress, 1790; and our entire attention is drawn to the operation of our own statutes upon the question. The Revised Statutes embrace all the acts of the General Assembly up to that time. The 4th section of the 122d chapter, which is the 15th section of the act of '77, chapter 115, vests in the Court of Pleas and Quarter Sessions the jurisdiction over the probate of wills, and the 8th section directs that all original wills shall remain in the clerk's office among the records of the respective counties for their safety, and for the free inspection of all who may desire it. The 7th section of the 122d chapter directs in what manner a will, made without the State, disposing of lands, or other property of a personal character within it, may be proved. Upon suggestion, the court may order a commission or commissions to issue to such person or persons as it may select, to take the depositions of the witnesses, etc.; upon which the court may proceed to adjudge the said will, etc. This section is obviously intended to apply to wills made by citizens of this State, while absent from it, in which case it might be inconvenient, if not impracticable, to procure the personal attendance of the witnesses, and relates to the probate of the original will in this State, but makes no provision when it cannot be obtained to be brought here.
The act of 1844, chapter 88, supplies this defect. It might, and often would, prove impracticable to procure the original will for (186) probate here, and that provides for the recording of a copy. It directs that when such a will shall have been, or shall be proved and allowed in some other State or country, and the original cannot be removed from its place of legal deposit into this State for probate, a duly certified copy or exemplification may, under the direction of the proper county court, be allowed and recorded. Still another case remained to be provided for: where a person, not a citizen of this State, makes a will, when beyond it, disposing of property within it. By the 6th section of the act of 1844, provision is made. It provides, "When any will, made by a citizen of any other State or country, shall have been, or shall be, duly proved or allowed in such State or country, according to the laws thereof, a copy or exemplification of such will, duly certified and authenticated, when produced and exhibited before the Court of Pleas and Quarter Sessions of any county of the State, where may be any property of the deceased, shall be by such court allowed, filed, and recorded, etc.; and the like effect be given to said will, as if the original, instead of the said copy, had been produced and allowed in said court." By this section the mode is pointed out, whereby the evidence of such a will must be perpetuated when disposing of property within this State. The copy of the will, when proved, must be produced to the proper Court of Pleas and Quarter Sessions, and it must, upon *183 the proper authentication, be allowed, filed and recorded. The county court, before whom the copy is exhibited, is the sole judge of its due authentication, and when they allow it it is their judgment that it is authenticated according to law, and if not appealed from, that judgment is final and conclusive upon all other tribunals, until properly reversed; and when so filed, the copy stands in the place of the original for the inspection of all persons; and when recorded, like all other wills, copies from them may be given in evidence — for such would be the effect, if the original had been produced and allowed. The provisions of this statute have not, in this case, been attended to. The copy of the will of Mr. Thornton has not been exhibited and allowed by any county court having jurisdiction thereof in this State; nor has it been allowed, filed, or recorded as the act directs; but we are called on to allow it on evidence upon the certificates annexed. We are not the (187) probate court, nor is the Superior Court of Anson, where the cause was tried. So far as the laws of Maryland may be concerned, the certificates may be all properly made. It is sufficient to say that our law has pointed out in what mode the copy of such a will must be made, to make it evidence here. The judgment is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Kelly v. Ross, post, 279; Drake v. Merrill,
(188) MEMORANDUM.
At the late session of the General Assembly, the Hon. WILLIAM H. BATTLE, of Orange, was elected judge of the Supreme Court, in the place of Hon. THOMAS RUFFIN, Chief Justice, resigned.
At the same session, the Hon. ROMULUS M. SAUNDERS, of Wake, was elected a judge of the Superior Courts of Law and Equity, to fill the vacancy occasioned by the promotion of Judge BATTLE to the Supreme Court bench.
At the same session, MAT. W. RANSOM, Esq., of Warren, was elected Attorney-General of the State, in the place of WILLIAM EATON, Esq., whose commission had expired.
And at the same session, WILLIAM N. H. SMITH, Esq., of Hertford, was reelected Solicitor of the First Judicial Circuit; WILLIAM LANDER, Esq., of Lincoln, Solicitor of the Sixth Circuit, in place of DANIEL COLEMAN, Esq., whose commission had expired; and AUGUSTUS W. BURTON, Esq., of Cleveland, Solicitor of the Seventh Circuit, in place of HON. BURGESS S. GAITHER, whose commission had expired. *185