Opinion
(December Term, 1830.)
1. The probate of a will ought regularly to appear upon the minutes of the County Court, and the will itself ought to be recorded.
2. Although the certificate of the clerk on the will itself has been commonly received as sufficient, yet if this certificate be made and signed by the deputy it is not a legal probate, and the fact that the original is on the files of the Court will not aid it.
3. In this State does any length of time dispense with the necessity of a probate? Quaere?
EJECTMENT tried before his Honor, Judge NORWOOD. The lessors of the plaintiff claimed titles as heirs at law of Josiah Sumner. The defendant claimed under James Sumner, who was the heir at law and devisee of Seth Sumner. Seth Sumner had devised the premises in dispute to his son, James, but in case he should die without issue, to Josiah Sumner, the ancestor of the lessors of the plaintiff; and the contingency having happened in the year 1824, the only question was whether the will of Seth Sumner had been properly approved. Upon this point the plaintiff offered in evidence a copy of it upon which was endorsed the following certificate:
Gaston, for the plaintiff.
Hogg, for the defendant.
FROM PERQUIMANS.
"Perquimans County Court, April Term, 1787:
"The last will and testament of Seth Sumner, late of said county, deceased, was exhibited and duly proved in open Court by the affirmation of Abner Pierce, one of the subscribing witnesses thereto; and at the same time appeared James Sumner, one of the executors therein named, and qualified according to law.
"J. HARVEY, Deputy Clerk."
The clerk of the County Court produced the original, and proved that he found it in the files of his office. Upon the original was a certificate, in all respects similar to that upon the copy offered by the plaintiff. His Honor, thinking that the above-mentioned facts did not in law amount to a probate of the will, nonsuited the (528) plaintiff, who appealed.
If in any case in this State the age of a will dispenses with the necessity of proving it, that rule cannot apply here, because the devisee was heir at law of the testator, and his possession is consequently consistent with either title.
The question, then, turns entirely on the sufficiency of the evidence of probate. The act of 1777 (Rev., ch. 115, sec. 57), enacts that the County Courts may take probate of wills, and order them to be recorded in proper books to be kept for that purpose. The act of 1784 (Rev., ch. 225, sec. 6), enacts that the probate of a will shall be sufficient evidence of a devisee, and that attested copies of such wills, or the records thereof, by the proper officer, may be given in evidence, as the original might. It must, therefore, appear that the will has been proved. This can only be done by the records of the Court. The original being on file is no evidence that it was proved. It might have been barely deposited by the executor, or caveated and adjudged to be no will. The certificate of the clerk on the will itself has commonly been received as evidence of the probate, because he is the "proper officer" to attest the acts of the Court. But regularly, it ought to appear by the minutes of the Court how it was proved, and the order for recording; and it ought to be recorded. If it did so appear on the minutes, or if it were recorded in the book of wills, those records would make the proper evidence, because these records are the acts of the Court, by whose hand soever the Court may have caused the facts to be set down. But, in the present case, it doth not appear that any order whatever was made on the record or minutes of orders of the Court, nor that the paper (529) itself has been recorded. It must be presumed that the party did not offer such evidence, because it does not exist; and the inference therefrom is very strong that no probate was, in fact, adjudged by the Court. The certificate alone of a deputy clerk in his own name is altogether insufficient evidence. He cannot attest the records of the Court, nor certify its acts. The original paper being among the archives of the clerk's office does not establish its probate. Its identity, perhaps, may be inferred from the certificate of the clerk, but much more certainly, and also the probate of it from the record of it. In the absence of such record, and any minutes of the probate, it cannot be received in evidence. The certificate on it is a nullity, unless it appear that the principal had died; in which case, by the act of 1777 (Rev., ch. 115, sec. 86), the deputy becomes clerk. The judgment is, therefore,
PER CURIAM. Affirmed.