The script was propounded as the will of one Ellis Wade. It was in the ordinary from of a will, with two subscribing witnesses. The probate was opposed on the ground that the decedent had not sufficient capacity to make a will, and, secondly, on the ground of undue influence exerted over him by Elizabeth Warren, the propounder. The decedent was a man of very intemperate habits; he lived at the time of the execution of the paper, and had for several years previously, in a state of adultery with the propounder, by whom he had several children; he had a wife, by whom he had no children, who lived separate from him in the State of Virginia. There was evidence tending to establish both the points made in the issue, which was submitted without exception. In order to rebut this testimony, the caveators offered in evidence the certified copy of a deed, executed in Halifax County, Virginia, reciting that his wife, Susan Wade, had obtained a decree for alimony (495) against the said Ellis in the county court of Halifax, and had obtained a writ of ne exeat to compel the satisfaction of said decree, and providing, in order to settle and put an end to said suit, that one-third of the whole estate of the said Ellis shall be vested in a trustee, for the sole and separate use of the said Susan, with full power in her to dispose of the same by deed or will.

The probate of the said deed is as follows:

HALIFAX CLERK'S OFFICE — 27 February, 1844.

The within indenture was presented in the clerk's office aforesaid, and acknowledged by the within named Ellis Wade, a party thereto, to be his act and deed, and admitted to record according to law.

Teste: M. M. HOLT, C. H. C.

The certificate of the transcript, offered in evidence, is as follows:

STATE OF VIRGINIA — COUNTY OF HALIFAX — Sct.

I, William S. Holt, clerk of the County Court, in the county and State aforesaid, do certify that the foregoing deed from Ellis Wade to Edward Boyd, trustee, is truly copied from the records of my office.

In testimony whereof I have hereunto affixed the seal of the said county, subscribed my name, this 7 November, 1859.

[L. S.] WM. S. HOLT, Clerk.

To which is added the following:

"I, Beverly Snyder, presiding justice of the County Court of Halifax, in the State of Virginia, do certify that William S. Holt, who hath given the preceding certificate, is clerk of said court, and that his attestation is in due and usual form. Given under my hand, this 5 November, 1859.

"BEV. SNYDER, P. J. P. H. C."

The admission of this copy was objected to on the ground that it was not proper evidence in itself, and because it was not attested according to the act of Congress. The objections were overruled and the (496) evidence admitted. The caveators excepted.

Verdict in favor of the propounder. Judgment, and appeal by caveators.

BATTLE, J.

The only question presented by the bill of exceptions is as to the admissibility in evidence of the certified copy of a deed purporting to have been copied from the records of the County Court of Halifax County, in Virginia. The transcript of the instrument was objected to on two grounds; first, because it was irrelevant, and, secondly, because it was not properly authenticated. The first ground of objection is clearly untenable. On the trial of the issue of devisavit vel non, the alleged will was opposed upon the allegations that the supposed testator was non compos, and that the script was procured by the exercise of undue influence over him. In answer to such allegations, made by the caveators, it was certainly very material for the propounders to show, if they could, that the testator had not, by giving his estate to other persons, lost sight of his primary duty to provide suitably for his wife. This proof was amply furnished by the instrument offered in evidence, and it only remains for us to inquire whether, as the original deed was not produced, the copy was authenticated in such a manner as justified its admission. Upon that point our opinion is adverse to the propounders.

The instrument, though purporting to have been recorded in the County Court of Halifax County, In Virginia, is manifestly not a judicial proceeding nor part of a judicial proceeding in that court. It is nothing more nor less than an indenture between the testator and another person as the trustee of his wife, whereby a certain part of the testator's estate is conveyed to the trustee for the sole and separate use of the wife. It is true that a part of the consideration for the deed was the compromise of a suit which the wife had instituted for the recovery of an alimony, but it does not appear that the deed was recorded as any portion of that judicial proceeding. It was a deed inter partes (497) executed in pais, and afterwards acknowledged in the court, and recorded according to the laws of Virginia, instead of being proved or acknowledged and registered according to our laws. Not being properly a record and judicial proceeding of the court, it cannot be authenticated as such under the act of Congress of 1790. See Appendix to the Revised Code, page 623. It may, perhaps, be considered as the record of an office book, and as such come within the provisions of the supplementary act of Congress, passed in 1804, but, unfortunately for the propounders of the will in this case, that act requires not only the attestation of the keeper of the office book, and of the certificate of the presiding justice of the court, but also the certificate of the clerk or prothonotary of the court, under his hand and seal of office, that the said presiding justice is duly commissioned and qualified. This latter certificate is wanting in the case now before us, and for that reason the certified copy of the instrument ought not to have been admitted in evidence. This was error.

PER CURIAM. Venire de novo.

Cited: Hughes v. Debnam, 53 N.C. 132; Kinsley v. Rumbough, 96 N.C. 196.