5 Rawle 80 | Pa. | 1835
The opinion of the court was delivered by
In this case three errors have been assigned; there is however but one question, and to this they all have relation This action, which is an ejectment, was brought by the plaintiff in error, in the court below, to recover land claimed by him as one of the heirs at law of Eliza Ann Smith deceased. On the trial of the cause, it was admitted that he was one of three, who were all the heirs that the deceased left at the time of her death. The defendants claimed the possession of the land under an instrument of writing, purporting to be the last will of the deceased, which they alleged was duly executed by her in her lifetime; and after producing two credible witnesses, who testified to the fact, they then offered to read the same in evidence to the jury. It was objected to by the plaintiff’s counsel, who showed- that after the death of Eliza Ann Smith an effort had been made to prove and establish the same instrument of writing as her.last will and testament, by producing it to the register where a caveat was entered, and the matter brought before the Register’s Court, by which an issue devisavit vel
It has however been argued that all these decisions and dicta of the courts and judges, were made and delivered in cases, where the wills had been approved by the register or the Register’s Court, and that there is no cáse to be found in which, the paper purporting to be a will, after being condemned by the register or Register’s Court, has been adjudged admissible in evidence, on the trial of a cause, in order to establish a right to the land devised by it, upon making proof first by two credible witnesses of its due execution by the testator. That to do so, would militate against the express declaration of the act of 1705, on the subject of wills, which requires, as is alleged,, that every will must first be recorded in the Register’s office, before it can be received in evidence as such. For this the first section of the act is relied onj which is as follows : “all wills in writing wherein or whereby, any lands, tenements, or'hereditaments within this province, have been, are, or shall be devised, being proved by two or more credible witnesses, upon their solemn affirmation, or other legal proof in this province, or being proved in the chancery of England, and the bill and answers transmitted hither, under the seal of that court, or being proved in the Hustings or Mayor’s Court in London, or in some manor court, or before such as have, or shall have power in England or elsewhere, to take probates of wills, and grant letters of administration, and a copy of such will with the probate annexed, or indorsed, being transmitted hither, under the public or common seal of the courts or offices where the same have been, or shall be taken, or granted, and recorded or entered in the register general’s office in this province, shall be good and available in law for the granting, conveying and assuring of the lands or hereditaments thereby given or devised, as well as of goods and chatties thereby bequeathed and copies of all wills and probates under the public seals of the courts or offices, where the same have been, or shall be taken, or granted
It has also been said, that to admit a writing purporting to be a will, that has been condemned by the register or Register’s Court, to be proved and given in evidence on the trial of an ejectment for the land thereby devised, is against that clause of the section already recited, which .declares that, “ the copies of all wills and probates under the public seals of the courts or offices &c. other than copies of probates of such wills as shall appear to be annulled, disproved, or revoked, shall be deemed &c. matter of record, and shall be good evidence to prove the gift or devise thereby made.” But it is very apparent that this clause has no application whatever, to the original wills themselves being proved, and given in evidence on the
Having answered the objections attempted to be raised against the decision of the court below fro'm the terms of the act of assembly relative to wills, it may not be improper to ascertain the character and efficacy given by the act itself to wills devising lafids. It declares that all wills in writing whereby lands are devised, being proved by two or more credible witnesses in this state, without directing how, in what manner or before whom this proof shall be taken or made, shall be good and available in law for the granting conveying and assuring of the lands thereby devised! Thus in terms giving to them the character and efficacy of conveyances, in addition to the peculiarities belonging to them as wills, which exempt them from some of the rules, to which deeds of conveyance are subject at common law: and in this light and character, they were viewed and considered by this court in Girard v. the City of Philadelphia, 4 Rawle, 323. The act then having prescribed no particular mode or manner in which wills devising lands shall be proved by two or more witnesses, the common law, in order to carry the provision of the act in this behalf into effect, will supply the omission, by permitting and enabling the party claiming land under a .will, to prove it according to the principles of the common law, as he would a deed of conveyance, by two or more witnesses, where he claimed under it. It is true that the probate made before the register of a will devising lands will entitle it, or a certified copy of it from him under his hand and seal of office, without further proof of its execution, to be read in evidence; but there is no authority whatever for this in the act of assembly. It is a rule founded on practice; and I presume, grew at first out of the authority given the register to take probate of wills, for the purpose of granting letters testamentary thereon, which related merely to the personal estate'of the testator. So a will disposing of land proved by two witnesses before a justice of the peace of the county where the land was situate, has been admitted in evidence. Lessee of Sharp v. Petit, 4 Yeates, 413. Looking upon it merely as a conveyance, this possibly, without stretching the recording acts too much, might be covered by them, but practice I believe has been considered the ground of its authority.
In the cases referred to, in which it has been held or said that the
At this time I recollect one case, and only one, which came under my own notice when at the bar. It was an ejectment brought and tried in the Court of Common Pleas of Fayette county by the lessee of A. Murdock v. Miller and others. The plaintiff claimed the land in dispute under a will alleged to. have been duly made by the testa
It also appears to me that it would scarcely comport with the spirit and genius of our law in regard to land-titles to hold that the decision of a register or Register’s . court unappealed from, whether in favour of or against a will devising lands, shall be final and conclusive upon all concerned. There is certainly no other species of writing, under which a party can claim title to land, that he has not a right to have at least two trials in ejectment brought for the land, where a full opportunity will be afforded upon each trial of testing its validity; and nothing short of two decisions against him by a court and jury in such' actions will conclude him. A deed for instance, under which a plaintiff in ejectment claims the land, may be denied, and yet notwithstanding the jury, under the direction of the court, on the trial of the first action, pronounce it a forgery, and on that ground find a verdict against him, he may if he thinks the first decision wrong, bring a second action of ejectment and submit the validity of his deed with all, and new, and additional evidence if he has it, to the decision of another jury, who will riot be bound
But it has been said, that as the probate of a will in regard to personal estate is conclusive upon all persons, so it ought to be in respect to real; because the value of the former, disposed of by will, .is frequently much greater in amount than that of the latter.- Admitting this to be true, still it does not furnish a sufficient authority for courts in this state' to disregard the great care and concern uniformly evinced by the legislature over real estate, beyond what they seem to have discovered for personal, in all their acts on the subject. By the act against frauds and perjuries they have placed a guard around the owners of land, to protect them in the enjoyment of their rights to the same, as well as to prevent them from making an indiscreet and incautious disposition thereof, by requiring that all rights to lands, excepting leases not exceeding the term of three years, shall be acquired and transferred in waiting signed by the party disposing of the same; leaving personal estate and the rights thereof to be disposed of by delivery merely under verbal agreements as at common law. So by the act of 1705, on the very subject of wills now under consideration, in order to pass the right to land it is made necessary, as we have seen, that they should be in writing, while personal property to any amount may be given and disposed of by nuncupative wills or word of mouth. We have also stated already that a party claiming a right to land is not bound and concluded by one decision alone ofa court and jury given in an action of ejectment against him," but may if he chooses have a second trial and investigation of it in a new ejectment brought by him for that purpose; whereas one decision in any form of action is conclusive in regard to a right to personal estate however great the value or amount may be. Again, justices of the peace have a limited jurisdiction given to them by acts of assembly over rights to personal property, but in no case whatever can they take cognizance of a matter in which the right to land or real estate will come in question. They to be sure may by act of assembly take probate of deeds conveying lands, but then such probates are but prima facie evidence of such deeds having been executed, and not conclusive. And no doubt this is going a sufficient length; first because there may be and generally is no opportunity afforded by notice to all concerned of contesting it; and, second, because the interest and intricacy of the questions involved
Upon full deliberation, after examining the question presented to us in all its various bearings, I think the judgment of the court below right, and that it ought to be affirmed.
Judgment affirmed.