16 Tex. 598 | Tex. | 1856
The authentication of the copy of the will and the probate thereof was in exact conformity to the statute. (Hart. Dig Art. 1114.) In our opinion it was not necessary, in order to admit it to record here and give it the effect contemplated by the statute, to prove by evidence aliunde, that it had been probated according to the laws of Georgia. It was sufficient that it appeared by the certificate of the Clerk, that it had been admitted to probate and record. The presumption must be that it had been so admitted in accordance with law.
The authentication was also in accordance with the Act of Congress providing the mode of authenticating the records of judicial proceedings. (2 L. U. S. 102.) It is held that the proceedings of Courts of Probate are judicial proceedings, which may be authenticated under the Act of Congress. (1 Greenl. Ev. Sec. 505 ; Cowen & Hill’s Notes to Phil. Ev. Part 2, p. 316, n. 144.) The proceedings of a Court of record thus authenticated are presumed to have been by competent authority and in conformity to the local law. The records are evidence, not only of the acts of the Court, but of its jurisdiction. And this presumption has been extended to the records of Courts of Probate. It has been accordingly held that it is not.necessary to make proof of the statute authority, or local law which conferred on the Court its authority to act. (Id. n. 41, and cases cited.)
The general principle is not controverted ; but it is supposed to be inapplicable to the present case, because it appears that the evidence probating the will was taken before the Judge of the Court of Ordinary in vacation. It further appears, however, by the certificate of the Clerk of the Court, that the will was “ admitted to probate and record in said Courtfrom which it must be taken that it was so admitted by the act of the Court; though the evidence upon which the Court acted was taken before the Judge in vacation. The presumption must be that it was so taken in accordance with law. It would be otherwise if the present were the act of a Court, not of re
It is scarcely necessary to cite authorities in support of a proposition so elementary, as that the original documents and records containing the proceedings in the Probate Courts of the State, when produced, are admissible in evidence. Being documents of a nature, which there may be an inconvenience in removing, and which, because they are records of a Court, the keeper thereof cannot ordinarily be required to produce, or remove into another Court, they maybe proved by means of a copy duly authenticated. But when the originals are actually produced, they undoubtedly are admissible as evidence, and are the best evidence of their contents. An original supposes no better evidence in existence. The case cited in support of the ruling of the Court excluding the evidence, (Styles v. Gray, 10 Tex. R. 504—5,) has reference to the proof of deeds, by the production of the books in which they are recorded ; and is to the effect that these books are not admissible any more than the copies from them, to prove a deed, without accounting for the non-production of the original. To admit either, it would be necessary to account for the absence of the original, as provided in Article 745 of the Digest; or by other proof of its destruction or loss. (11 Tex. R. 235.) But the proof of an original deed by a copy is very different from the proof of the proceedings and judgments of a Court by the originals themselves.
We are of opinion that the Court erred in its rulings, ap
Reversed and remanded.
