Ives v. Allyn, 12 Vt. 589

Ives v. Allyn

12 Vt. 589 | Vt. | 1840

The opinion of the court was delivered by

Williams, Ch. J.

— 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, *594without any statute in relation to the probate, it would be necessary, as in England, to produce the original in trials of titles derived under it. By the statute of 1797, a will, executed, proved and allowed in any probate court of the United States, might, after due notice, be filed and recorded in any probate court in this state, and such filing and recording had the same force and effect as the probate of an original will. A further provision, in 1804, required such copies to be recorded in the probate office and in the town clerk’s office. The present statute, which was passed in 1821, is similar in its provisions. Notice is to be given to all persons concerned, to appear and contest the probate or filing and recording, and when recorded, the copy of the will thus proved and allowed in another state, recorded here, is to have the same effect as the probate of an original will. Without this statute it would have been necessary to have produced the original wills, and the probate in Rhode Island would have no effect on any lands in this state, devised under either of the wills. The copies of the wills, not having been filed and recorded in any probate court in this state, and no probate of them having been obtained, were not legal evidence of their execution, and were not admissible in evidence.

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 *595difficulty with the other questions which have been made. The wills being established, Wm. C. Bowen had an interest in the lot in question, sufficient to maintain an action. If it was known to the court that a justice of the peace in Rhode Island was authorized to take the acknowledgment of deeds, the certificate or acknowledgment of this deed was legal and sufficient, according to the authority of Brooks v. Chaplin, 3 Vt. R. 281. But, for the reasons before mentioned, viz : the admission of the copies of the wills of Christopher 01-ney and Sally Ann Olney, the judgment of the county'court is reversed.