Fotheree v. Lawrence

Handy, J., delivered the opinion of the court. This was an 'action at law brought by the defendant in error, to recover certain slaves claimed by him under the will of Elizabeth Lawrence, deceased; and the only question for determination, as the case is now presented, is, whether the will was shown to have been legally probated. On the trial, the plaintiff offered in evidence, as the basis of his title, a paper which was certified by the clerk of the Probate Court of Copiah county, to be “ a correct transcript of the original will therein named, as fully and completely as the same is on file and of record in his office.” This copy shows first the will, and then what purports to be the probate of it, which is as follows:— “■ State of Mississippi, j Probate Court. Copiah county. J December Term, 1833. “ George Ellis, jr., one of the witnesses to the within will, being duly sworn, did depose and say, that he saw Elizabeth Lawrence, the testatrix therein named, sign and seal the same, and heard her publish, pronounce and declare the within writing to be her last will and testament, and that he saw George Ellis sign it, as the other witness, and that at the doing thereof, the-said testatrix was of sound and disposing mind and memory, so far as he verily believes. George Ellis, Jr. “ Sworn to and subscribed in open court, this 23d December, 1833. Rowland Johnson, Clerk pro tern.” Objection was made to reading this copy, because there was no evidence that the will had been admitted to probate, and it was thereupon admitted by both parties, that the Probate Court of [419] Copiah county kept a minute book of its orders and decrees, and that no order nor entry of any kind was to be found on the minute book of that court in relation to this will, but that the will and the affidavit as above stated, were recorded in the office of the Probate Clerk of Copiah county, in the book of wills. The copy was admitted and read in evidence, to which the defendant excepted, and the verdict and judgment being against him, he has brought the case here. When this case was presented on the-former argument, we were of opinion that this will should be considered as having been duly probated, it appearing that the affidavit authenticating it was made in open court, and the copy offered in evidence having been taken from the regular book of recorded wills. But upon reconsideration, we are satisfied that this is an improper view of the subject. In order to entitle a party to offer in evidence a will under which he claims title, it is incumbent upon him to show that it has been regularly admitted to probate. This probate is a judicial power confided by our laws to the judges of the Probate Court, and unless shown to have been exercised by them, no testamentary writing can have the effect of a will. Accordingly, the act of 1821, (Hutch. Code, 430,) provides that the clerks of the Probate Courts, shall “record all last wills and testaments duly proved and approved.” He is only authorized to record such instruments when they shall be “proved and approved;” and consequently, where the same act provides, (Hutch. Code, 650, § 23,) that “ an authenticated copy of any will, testament or codicil, recorded in any office authorized to record the same, shall be admitted as evidence,” it is to be understood, such instruments as are duly probated by the proper Probate Court. No particular form of exercising this judicial function is prescribed by law; and it is sufficient, if it clearly appears that the judicial act was done by the judge. This may be shown by a record of the act made upon the minutes of the court, or by an entry written upon some part of the instrument showing that it was duly proved before the court, and approved or ordered to be recorded as the will of the testator; or it may be shown by proof, that letters tes [420] tamentary were granted upon it by the Probate Court. Kiny v. Inhabitants of Netherseal, 4 T. R. 258; Armstrong v. Lear, 12 Wheat. 169. In this case, the paper relied on is not sufficient in any of these particulars. No act whatever of the court is shown, nor does any thing appear, from which such a judicial act as was required to be done, could be justly presumed. It appears that the affidavit of the subscribing witness was taken before the clerk in open court. But it cannot be properly presumed from this, that the court “ approved” of the testimony, as sufficient to establish the will, and ordered it to be recorded. Nor does the fact that it was recorded in the record book of wills, show that it was done by order of the court. Prom the absence of any entry upon the minutes, or of any written order signed by the judge, the presumption should rather prevail that no act was done by him approving the will or ordering it to be recorded, and that it was entered in the record book of wills by the clerk without authority of the court, and that the affidavit of the subscribing witness in open court never received the sanction of the court as a sufficient proof of the will. It is urged in support of the validity of the will, that after so great a lapse of time it must be presumed that it was regularly probated, and that the evidence of it may be lost or destroyed. But nothing is shown to give force to this presumption. Por aught that appears, the records were regularly kept, and they were adduced on the trial, but contained no entry showing any act of the court establishing this will. If the property bequeathed had passed in possession in virtue of it, this, after such a lapse of time, would have justified the presumption that the will had been duly probated; but without some act recognizing it as a will, either directly or by legal intendment, no such presumption is created by the mere lapse of time, and no act having such legal effect is shown in the record. The judgment is therefore reversed, and the cause remanded for a new trial.