Opinion
August Term, 1849.
It is sufficient evidence of the probate of a will to pass real estate that it is certified by the clerk that "it was proved in open court by H. G. a subscribing witness, and recorded," when it appears on the face of the paper that there were two subscribing witnesses.
APPEAL from the Superior Court of Law of MECKLENBURG, at Special Term in July, 1849, Baily, J., presiding.
On the trial of this action in ejectment the defendants were proved to be in possession of the premises set forth in the declaration. The plaintiff's lessors claimed the lands as sole heirs of one Thomas Kendrick, and, to make out their case, they offered to read in evidence a copy of the last will and testament of one John Kendrick, deceased, in which a portion of the land described in the declaration was devised to Green Kendrick, another portion to Thomas Kendrick, and the residue (181) to his widow. The defendant objected to the reading of the said will because it was not duly certified; secondly, because it did not appear that it had ever been proved as a will to pass real estate. The certificate of the clerk was as follows: "The last will and testament of John Kendrick, deceased, was proved in court by Henry H. Glover, a subscribing witness, and recorded."Two other names appeared on the paper as the names of subscribing witnesses. The court overruled the objection and permitted the will to be read. The plaintiff then read a copy of a deed in trust made by Thomas Kendrick in April, 1829, to one James Dinkins. The bargainor in the said deed was the immediate ancestor of the feme lessor of the plaintiff, which deed covered the lands embraced in the plaintiff's declaration, besides some negroes. The Plaintiff then, with the view of showing that the defendant claimed title to the property in controversy under Thomas Kendrick, introduced one Smith, who swore that he heard a conversation between one Lewis Dinkins, the executor of James Dinkins, the trustee, and S. Fox, the administrator of Thomas Kendrick, and R.J. Dinkins, the cestui que trust, in which conversation it was agreed by R. J. Dinkins that the executor of the trustee might surrender the negroes to the administrator of Kendrick, if he could get the land; and he also proved that he heard R.J. Dinkins say that he had purchased from the widow of Thomas Kendrick her dower estate in the land, at the price of $600; which testimony was objected to and the objection overruled by his Honor. The plaintiff read copies of deeds, after objections, from R.J Dinkins to one B. Persons and from B. Persons to Eli Springs, the husband, of the defendant T.B. Springs. It appeared from the testimony of the plaintiff that 106 acres of the land sued for had belonged to one Osborne, and that his daughter and her husband, while she was a married woman, had conveyed (182) the land to the feme Plaintiff, without any privy examination, and that she and her husband had been dead for five years, so that the lessors of the plaintiff had no title to this portion of the land; but the plaintiff insisted, if the jury were satisfied from the testimony of Smith, that R.J. Dinkins claimed the land under the trust deed, the plaintiff was entitled to recover the whole of the land described in the declaration. And his Honor instructed the jury that if they were satisfied from the testimony of Smith, that Dinkins claimed all the land sued for, under the trust deed to James Dinkins, the plaintiff was entitled to recover all the land described in his declaration. The judge was requested to charge the jury that the plaintiff was not entitled to recover the 106 acres, conveyed by the husband and wife, for the reason that, according to the plaintiff, the lessors had no title; which charge the court refused to give. A verdict was returned for the plaintiff for all the lands described in the declaration. From the judgment upon this verdict the defendant appealed.
Thompson, Bynum and Alexander for plaintiff.
Boyden and Wilson for defendant.
We think his Honor erred in his instruction to the jury, and there must be a venire de novo. On the trial, a copy of the will of Thomas Kendrick, the father of the feme lessor of the plaintiff, was offered in evidence and opposed, upon the ground that it did not appear from the clerk's certificate that it had been proved as a will to pass real estate. The will is attested by three witnesses, and the clerk certifies "that it was proved in open court by Henry H. Glover, a subscribing witness, and recorded." The alleged objection is that the clerk has not certified that the witness proved the will, as required (183) by law to pass real estate. It is believed the probate is sufficient to pass the real estate, and that it does so sufficiently appears by the certificate.
The objection was first brought to the notice of the court in U.S. v. Blount, 4 N.C. 181. In that case the clerk's certificate was as in this, and the objection the same. The decision was that it is not essential that the clerk's certificate should set out all the circumstances necessary to the validity of the will to pass real estate. When it appears on the face of the will that there were two witnesses, and the clerk certifies that it was proved by one, the proof must prima facie be intended to have been such as the law requires, that is, that the witness deposed that he and the other witness subscribed the will in the presence of the testator, because the law requires such an attestation and such proof, and without it the court would not admit it to probate. That case was referred to and approved of in a more recent one of Morgan v. Bass, 25 N.C. 243. The certificate of the clerk there, as in this case, as to the proof of the will, so as to pass real estate, was sufficient — and the court committed no error in admitting the evidence. We express this opinion, not because it is necessary to the decision of the question properly submitted to us, but because, as the case must go back to another jury, our silence upon it might be misunderstood and the investigation embarrassed by it. The plaintiff is not entitled to a verdict. He showed no legal title to the land in his lessor. No grant was produced, and, as far as the case discloses the facts, the title is still in the State. To remedy this defect, he alleges that the defendant claimed the land under a deed of trust made by Thomas Kendrick, the father of the feme lessor. It appeared that Thomas Kendrick claimed the land and conveyed it in trust to one James Dinkins, to secure a debt due to one Robert J. Smith that he heard a conversation between Lewis (184) Dinkins, S. Fox and R. J. Dinkins, in which it was agreed that the executor might surrender the negroes to the administrators, if he (Robert J. Dinkins) could get the land. At the time this conversation took place Thomas Kendrick and James Dinkins were both dead. Lewis Dinkins was the executor of the trustee and S. Fox the administrator of the bargainor. Smith further proved that he heard Robert J. Dinkins say he had purchased of the widow of Thomas Kendrick her right of dower in the land in question. The reception of all this testimony was opposed, but the objections were overruled. A regular paper title was shown by the plaintiff from Robert J. Dinkins to the defendant. His Honor instructed the jury that if, from the testimony of Smith, they believed that Robert J. Dinkins claimed the land in controversy under the deed of trust, the plaintiff was entitled to recover all the land described in his declaration. On looking into the deed of trust it appears that it conveyed to James Dinkins, the trustee, only a life estate, without any provision for its continuance after his death. At the time the conversation testified to by Smith took place both James Dinkins and Thomas Kendrick were dead. The legal title had reverted back to the heir at law of Thomas Kendrick, who was the feme lessor of the plaintiff, she being his only child. The deed of trust was functus officio, a dead letter; and Robert Dinkins could not claim under it. Nor is there any evidence that he ever was in the possession of the land or any portion of it. His declaration was, if he could get the land the executor of the trustee might give up to the administrator of the bargainor the negroes conveyed by it. Nor was there any proof what had become of the negroes. There was, in fact, nothing for an estoppel to operate on. Estoppels are not favored in law, particularly such as arise from the acts of the party, as their effect is to exclude the truth. The plaintiff having entirely failed to show that the defendant claimed (185) through Robert J. Dinkins under the deed of trust, and having produced no sufficient evidence of a legal title in his lessors, was not entitled to a verdict. The exception to the mesne conveyances was withdrawn in the argument before us.
PER CURIAM. Judgment reversed, and a venire de novo awarded.
Cited: Colvard v. Monroe, 63 N.C. 289; Jenkins v. Jenkins, 96 N.C. 258; Cowles v. Reavis, 109 N.C. 421; In re Thomas, 111 N.C. 413; Moody v. Johnson, 112 N.C. 800, 813.