12 Vt. 589 | Vt. | 1840
The opinion of the court was delivered by
— In this case, in order to establish a title to the right of James H. Olney, who was original proprietor of the lot sued for, the plaintiff introduced certified copies of two wills, to wit, that of Christopher Olney and that of Sally Ann Olney. It was necessary for the plaintiff,if he produced either deeds or wills, to establish a title, to produce such as were valid under the laws of this state. Alienation of real estate, whether by deed or devise, as well as the rule of inheritance, are regulated by the lex rei sita. In England, in all cases where a title to real estate is to be made through a will, the will itself must be proved. The probate thereof before the ecclesiastical court is of no importance. In this state the probate of a will is conclusive proof of its execution, as it respects real, as well as personal estate. The efficacy of the probate is derived from our statute, and,
It is now contended, however, that if the wills are set aside, it appears that William C. Bowen had title to the lands in question, as heir to Rebecca Bowen, who was daughter and heir of Christopher Olney, to whom the title was traced,and that this appears by the deposition of Mary Olney, which is a part of the case. This position, however, cannot be maintained for two reasons.
1. The plaintiff, after the copies of the wills were admitted, made out a title through the devisees. It would have been of no use to attempt to coutrovert the title of the heirs by any evidence tending to disprove the fact of their being heirs, or to show a title under any other heir. If the wills were not properly admitted, the title, on which the plaintiff recovered, fails entirely.
2. The same deposition of Mary Olney, which proved the pedigree of Wm. C. Bowen, proved also, that Christopher Olney did not die intestate, and this made it necessary for the plaintiff to introduce the wills.
Had these points been obviated, we should have had no