Opinion
December Term, 1822.
A will was executed in Tennessee, and from the certificate of probate on the exemplified copy produced here, it appeared that but one witness swore that he subscribed the will as witness in the presence of testator, and the other witness to the will did not appear to have been sworn at all. Held, that such will should not be read in evidence.
TRESPASS, quare clausum fregit, in which it was necessary for the plaintiff to show title to the land in dispute. The title set up was a devise to the plaintiff in the will of John Strother of the State (238) of Tennessee. The execution of the will appeared to be attested by two subscribing witnesses, and an exemplified copy thereof was produced in the court below, with a certificate of probate in the following words: "The last will and testament of John Strother, deceased, being exhibited in open court, was proven thus: John Drake, one of the subscribing witnesses, being sworn, says that he believes the testator was in his right mind at the time he executed said last will and testament, and that he subscribed his name as such in the presence of the testator. Ordered by the court that it be recorded at length."
The court below instructed the jury that the probate of the will as certified was not sufficient to convey real property under the laws of North Carolina, and a verdict was accordingly rendered for the defendant. A motion for a new trial on the ground of misdirection as to the certificate of probate was disallowed, and judgment having been rendered for defendant the plaintiff appealed to this Court.
Gaston and Seawell in support of the motion.
Wilson contra.
Whether the probate offered in this case is admissible evidence depends on the construction of several acts of Assembly passed on the subject, and the just application of some legal principles, the observance of which is important to the security of property.
A comparison of section 11, ch., 204, Laws 1784, with section 5 of 29 Car. II., ch. 3, will show beyond controversy that our Legislature had that in view; and that, with the exception of the number of witnesses, the omission of the word "attested," and the adoption of that part of the Stat. 23 Geo. II., which renders void a devise to a witness, it was their design to avail themselves of so much of the said (240) statute as prescribes the essentials in executing a will.
Wherever title to land is claimed under a devise by that statute, the devisee must produce the original will in court, and establish its execution by proof in the manner required by law. But in this State probates are received in evidence, and attested copies of wills are made testimony, except where fraud or irregularity is suggested; and in such cases the original will must be exhibited. As the probate of a will upon the trial of an ejectment can be admissible evidence solely upon the ground that the county court receiving it admitted the will to record upon proper proof of its execution according to the act, it follows that the cases decided upon 29 Car. II. relative to the execution of wills must furnish criteria by which to the ascertain whether a probate in this State has been properly received. There is no other sure way of enforcing the statute; since if every probate were admissible, the effect would be to repeal it, and thereby to leave to the county courts to pronounce on the manner in which a will shall be proved, whether by a witness or by evidence of the handwriting.
The effect of the act of 1784 is to prevent the court from seeing the intention of the testator to dispose of his real estate, if in truth he has not done it with the solemnities enjoined by the statute. It is true that the court cannot read a will without the words "real estate" in it, but the act of 1784 binds them to say that if a man by a will unattested by two witnesses gives his real estate he did not mean to give it all. 2 Ves., Jr., 652.
Where a will is not contested, one of the subscribing witness is sufficient to have it recorded; and so upon the proof of a will, upon a trial at law, one of the witnesses is sufficient to establish it. 1789, ch. 30.
By ascertaining what facts and circumstances such witness is (241) required to prove for that purpose, it will be readily seen what proof is necessary to admit the will to record. Besides the sanity of the testator and his signing or acknowledgment, both of which are shown in this case, it is also necessary to prove the subscription of the witnesses in the testator's presence.
But although one witness is sufficient to prove the will, yet it is necessary for that one to prove all that is necessary to establish its validity. Holt, 744. And if the other witnesses even refused to verify their attestation, the proof of their handwriting is sufficient, if only one witness proved the other circumstances of the execution. Lord Camden, speaking of the method of proof in a court of common law, says: "One witness is sufficient to prove what all three have attested, and though that witness must be a subscriber, yet that is owing to the general common law rule that where a witness has subscribed an instrument he must always be produced, because he is the best evidence. This, we see, in common experience, for after the first witness has been examined the will is always read."
The objection that no notice is taken in the subscription of the fact of its having been done in the presence of the testator is not valid, for that ceremony is not required by the act of 1784, and whether it were so expressed or not, it must be proved to have been so done to the jury, under 29 Car. II., and now by analogy to the county court. This point has been directly decided. Comyn, 531; 2 Strange, 1109.
It then appears from the probate that a will of real property has been proved only by one witness; and there is no ground to presume either that proof of his subscription in the presence of the testator or of any subscription by the other witness was made to the court directing the probate, which, if so made in this State, would be clearly inadmissible in evidence. For the act requires the subscription of the witnesses to be made in the presence of the testator, for the purpose of (242) guarding against fraud, and to prevent the substitution of a false will in the place of the true one.
I think it by no means probable that a probate of this kind would be deemed admissible in Tennessee, where the act of 1784 has been in force. But even if the law be altered, and a will of land attested by only one witness is sufficient to pass the title to land there, it can have no effect upon a title to land in this State; for it is a principle founded in reason, and confirmed by an uniform current, of authorities, that a title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate. Every person, says Lord Kenyon, having property in a foreign country may dispose of it in this, though, indeed, if there be a law in that country directing a particular mode of conveyance, that must be adopted. 4 Term, 492. And the devise of land must necessarily depend upon the law of the country, for where an Englishman, being beyond sea, made a will disposing of land in England, it was held void because it had but two witnesses. 2 P. Wms., 290. A writer on the civil law whose decision on this subject is often quoted with approbation maintains that a State affixes certain rights to the dominion of real property and is therefore interested in its disposal, and could not, without great inconvenience, suffer it to be conveyed with its incidental rights by the laws of another and contrary to its own laws. 2 Huberus, 13; 1 Tit., 3.
In opposition to these principles and authorities, it would be giving a loose and mischievous construction to chapter 23, Laws 1802, to consider it as giving validity to deeds and wills executed in other States for land in this, and thereby to repeal all our acts which so anxiously prescribe the modes of transfer in all cases where they happen (243) to conflict with the laws of other States.
But its only object was to authenticate the copies of those instruments, such as they are — not to decide upon their legal efficacy or operation, but to leave that to the courts where a title might be controverted. This, I think, is conclusively shown by two expressions in the act itself: one is that a copy from another State can only be received where the original deed or will cannot be obtained to register in the county where the land lies; hence the copy, to be admissible in evidence, must be of such a deed or will as would be admitted to record in this State. This test, applied to the copy offered here, effectually excludes it; for it has been shown that a will so proved could not be admitted to record in this State. And the conclusion of the act points to the same criterion. "It shall be admitted in the same manner as a copy from any of the registers' or clerks' offices" in this State.
The Constitution of the United States and the Act of Congress of 1790, ch. 11, which have also been relied on in favor of this probate, do not advance the argument in its support. The act, after providing for the mode of authenticating the records and judicial proceedings of the State courts, declares "that they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken." Admitting that a court in Tennessee should be called upon indirectly to decide upon the title of land in this State — for directly it could entertain no jurisdiction in the case — the established principles of judicature would necessarily lead to the inquiry, how land is devisable in this State, and upon ascertaining that two witnesses are necessary the probate now offered would be rejected there.
For these reasons I am satisfied that the evidence was properly (244) rejected, and that a new trial ought not be awarded.
HALL., J. By Laws 1784, ch. 204, sec. 11, no last will or testament shall be good or sufficient, either in law or equity, to convey or give any estate in lands, etc., unless such will shall have been written in the testator's life and signed by him, etc., and subscribed in his presence by two witnesses at least, no one of which shall be interested in the devise of said lands.
This is a general law and embraces the case of all wills wherever made in which lands are devised that lie within the limits of this State. It belongs to the Legislature to make such regulations as to them may seem right as to the titles of land within the State.
By Laws 1784, ch. 225, all probates of wills in the county courts shall be sufficient testimony for the devise of real estates, and attested copies of such wills, or the records thereof, by the proper officer shall and may be given in evidence in the same manner as the originals. By this act ample provision is made for giving in evidence all wills made within the State, and by the act of 1802, ch. 623, provision is made for giving wills in evidence, which may be made without the limits of the State, as follows: "A copy of the will or deed, after the same has been proved or deposited agreeably to the laws of the State where the persons died or made the same, being properly certified, either accordingly to the act of Congress passed in May, 1790, or by the proper officer of said State, etc., that then the said copy shall be read as evidence in the courts of this State, and shall be admitted in the same manner as a copy from any of the registers' or clerks' offices therein." In this case there is no objection made to the authentication of the will of John Strother, but it is objected that it has been proved by but one witness, and the proof made of (245) its execution by that witness is set forth verbatim, and the idea is excluded that it was proved by that witness in any other way. There is no grounds on which to infer that this witness proved that the other witness subscribed his name in that character in the presence of the testator, and I think the objection a good one. I think the Legislature intended by the act of 1802 to point out the way in which wills made out of the State should be authenticated, but not to give validity to them, or, in other words, to repeal the act, of 1784 requiring two witnesses, provided they were not made conformably thereto. This would be to require less proof of wills made without the State than of those made within it. I think they intended that the will might be read when properly authenticated, but not to give validity to a devise of lands unless made agreeably to the law of the land. It has been thought in argument that chapter 308, Laws 1789, probably had some bearing on the case. That act declares that a written will with witnesses thereto shall be proved by at least one of the subscribing witnesses. The title of that act is, "An act to amend an act entitled an act concerning proving of wills, etc., passed in the year 1715." It points out the place and manner of proving wills, as above stated, and makes many regulations concerning the estates of deceased persons not connected with the present question. It never once speaks of the act of 1784 requiring two witnesses to a will, and I cannot bring myself to believe that the Legislature, by anything they have there said, intended to repeal it. Indeed, I think the two acts may stand well together, for, by the latter act, if the will is proved by one witness, who also proves that another subscribed as a witness, as the law requires, the act of 1784 is satisfied; besides, if it should be proved only by one witness, it would be sufficient to pass personal property, and on that account the will should be admitted to record. But in case the will is contested, the act of 1789 goes further than the act of 1784; it then requires the production of (246) all the living witnesses, if to be found.
For these reasons, believing that the act of 1784, requiring two witnesses to a will of lands, whether made within or without the State, has not been repealed, I think the rule for a new trial should be discharged.
PER CURIAM. No error.
Cited: Morgan v. Bass, 25 N.C. 245; In re Thomas, 111 N.C. 413; Moody v. Johnson, 112 N.C. 800; Watson v. Hinson, 162 N.C. 79.