Opinion
(June Term, 1863.)
Where the certificate of probate to a will set forth that it was proved in common form by the oath of A., one of the subscribing witnesses, and then proceeded to state what the witness swore to, and there was no assertion among these particulars that A. subscribed the will as a witness in the presence of the testator, it was held that the probate was defective.
(124) EJECTMENT, tried before Dick, J., at Spring Term, 1861, of HAYWOOD.
The lessor of the plaintiff adduced his title regularly to John Leatherwood, whose will conveying the same to her, was offered in evidence, but objected to for the want of a due probate. The certificate of the probate of the will was as follows:
"The last will and testament of John Leatherwood, deceased, was duly proven in common form by the oath of Rufus A. Edmonston, one of the subscribing witnesses thereto, who swears that he saw the said John Leatherwood sign and seal said paper-writing, and declared it to be his last will and testament, and at the time thereof was of sound, disposing mind and memory, and that he done it freely and without compulsion. Sworn in open court, which was ordered to be spread at length on the paper-book kept for that purpose."
The evidence was admitted, and defendant excepted. The will had two subscribing witnesses to it, and it was objected that the probate was made by one only. This objection was overruled, and defendant excepted.
Verdict and judgment for plaintiff, and appeal by defendant.
No counsel for plaintiff.
Merrimon for defendant.
We are of opinion that the probate of the will of John Leatherwood was not sufficient according to the certificate, and it was, consequently, error to permit the will to be read in evidence. Had the certificate stopped after these words, "The last will and testament of John Leatherwood was duly proved in common form by the oath of Rufus A. Edmonston, one of the subscribing witnesses thereto," it would have been sufficient in this view of the question ( Marshall v. Fisher, 46 N.C. 111; Beckwith v. Lamb, 35 N.C. 400; University v. Blount, 4 N.C. 13), on the ground that every court, where the subject-matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings, unless there is something on the face of the proceeding to show to the contrary; for the presumption is that the court knew how to take the probate of a will, (125) and saw that it was properly done. But if there be anything on the face of the proceeding to show the contrary, that will rebut the presumption. In Carrier v. Hampton, 33 N.C. 307, the probate of a deed was before a judge of the Superior Court, and he certified "that Jefferson S. Hampton, being duly sworn, testified that Edmund Tomberlin, the subscribing witness to the within bill of sale, is dead, and that the signature of Jonathan Hampton, the grantor therein, is in the proper handwriting of the said grantor." It is held that the probate was not sufficient, because the judge professes to set out what was sworn by the witness, and on the face of the proceeding it appeared that the probate was defective in this, that the witness did not state upon what ground he founded his opinion, nor by what means he had acquired a knowledge of the handwriting of the party. In our case the certificate professes to set out what was sworn to by the witness Edmonston, i. e., "who swears that he saw the said John Leatherwood sign and seal said paper-writing, and declared it to be his last will and testament, and at the time thereof was of sound and disposing mind and memory, and that he done it freely and without compulsion. Sworn in open court." So it appears on the face of this proceeding that the probate was defective in this: the witness did not state that he subscribed the will, as a witness, in the presence of the testator, which is an essential requisite in the due execution of a will to pass land. The omission of this fact, where particulars are entered into, rebuts the presumption that would otherwise have been made under the maxim omnia presumuntur rite esse acta; consequently the probate as it now appears must be held to be defective. Should the fact be that the witness did swear that he subscribed the will as a witness, in the presence of the testator, and the omission to set it out was a misprision of the clerk, the county court may permit an amendment so as to make its records speak the (126) truth, and in that way put the matter right. For this error there must be a venire de novo.
We do not see proper to notice the objection that the will was proven by only one witness, whereas by the Revised Code it is necessary that it should be proved by at least two witnesses, because it is not necessary for the purpose of this decision, and from the statement of the case made by his Honor it does not appear at what time the will was admitted to probate; for if it was done before the Revised Code went into operation, the probate by one of the subscribing witnesses was sufficient. How that fact is will, of course, be set out if the case should come up again.
PER CURIAM. Error.
Cited: Howell v. Ray, 92 N.C. 514; S. v. Jones, 93 N.C. 618; Cowles v. Reavis, 109 N.C. 421.