53 N.C. 147 | N.C. | 1860
The decedent, according to the language of the paper writing offered, had lived in Robeson County, North Carolina, but then was of St. Clair County, Alabama. The basis of this application was this certificate:
STATE OF ALABAMA, ST. CLAIR COUNTY. (148)
"Personally appeared before me, James Rogan, judge of the county court of said county, John F. Dill and C. C. Farrar, two of the subscribing witnesses to the within will, who, being duly sworn, deposeth and saith that they were present at the time said will was signed, and that they saw the same signed and acknowledged by Robert Pittman, for the purposes therein contained, and that the said Robert Pittman was, at the time of signing the same, of sound mind.
JOHN F DILL, C. C. FARRAR. "Sworn to, and subscribed before me, This 30 June, 1838. JAMES ROGAN, Judge of County Court." *114
Also, this further certificate:
"State of Mississippi, Carroll County — Probate Court, October Term, 1838.
"Then was this will admitted to probate, and ordered to be recorded. THOMAS RHODES, Clerk."
"State of Mississippi, Carroll County:
"I, A. M. Nelson, clerk of the probate court of said county, hereby certify that the foregoing is a true and correct copy of the last will and testament of Robert Pittman, deceased, as the same appears of record in my office in Book A, page 13. Given under my hand and the seal of office, at Carrollton, 21 February, 1857."
Then comes the certificate of the judge of the probate court, 11 July, 1857, to the effect that Mr. Nelson was the clerk, "duly commissioned, and that full faith and credit should be given to his official acts." Signed by Joseph Drake, judge of the Carroll probate court.
Upon this evidence the court refused to have the paper-writing admitted to record. Whereupon the plaintiff appealed.
Under the provisions of Rev. Code, chap. 119, sec. 17, the will of one, domiciled in another State, admitted to probate there according to the requirement of the law, will be admitted in the courts of this State, as proved in respect to personalty, and put upon the records. To entitle a case to this comity, it is necessary, however, that the will should be proved at the place of the domicil, and that an exemplification of the will and probate should be duly certified to us by the proper officers of the court, with the information that it is in due form. It will then become the duty of any court in this State, where there are goods of value belonging to the deceased, to spread it upon its records and issue letters thereon. The law in respect to such matters in view especially of our statute law upon the subject, was fully discussed inHyman v. Gaskins,
Referring to the documents now before us, it will be seen that the testator was of St. Clair County, Alabama, where a probate is first had of his will. It then seems to have been propounded in some form in Carroll County, Mississippi, where it was admitted to probate, also. The copy which we have is from Mississippi, and is certified by the clerk of the probate court for Carroll County, to be a true copy. We *115 are unable to discover from its contents, whether the original or a copy was sent to Mississippi, but in either case the exemplification sent us is not a compliance with the law. In the absence of the original (which we suppose might have been brought into North Carolina and proved), it is proper that we should have a copy and an exemplification of the proceedings, properly certified from the court of probate at the domicil. At best, we have only a certificate from the court of Carroll County that certain matter was certified to that court. A copy of a copy, in record evidence, is inadmissible. Whether it be duly proved according to the law of the domicil we are not informed. It is indispensable that the probate court in Alabama should adjudge the paper, upon the proofs, to be the last will and testament of the deceased, and that this should be certified directly to us. (150)
PER CURIAM. Affirmed.