Musser v. Curry

WASHINGTON, Circuit Justice. The register is authorized, by the law of Pennsylvania, to receive the probate of wills; and copies of such wills and probates, under the public seals of the courts, or offices, where the same shall have been taken, or granted, if in force, are declared to be matters of record, and good evidence to prove the devise thereby • made. The authority of the register being general to take the probate of wills, extends as well to the re-publication as to the publication of a will. The will, in relation to after acquired property, is a new will, by virtue of the re-publication; and the probate belongs to the register, under the literal expressions of the law, as well as under its plain and obvious meaning. For, if on account of the want of a court of chancery, to perpetuate the testimony of the witnesses to a will, or for any other cause, the probate of the will before the register was to be received as evidence of the devise of land, the same reason would seem to have required, that the re-publication should be proved in the same way. A codicil amounts to a republication; and.'there íCan be no doubt, but that the register, having received probate of the will, may afterwards receive probate of the codicil, which does -not differ materially from the present. case.' But the same evidence is necessary to prove a re-publication, as the publication. ■ The proof before the register was only that of one witness, which is not sufficient, without further evidence, to establish the re-publication. The defendant then examined two others of the witnesses-to the will, to show that the will was re-published subsequent to the 13th of June, 1812. The credit of one of these witnesses was . powerfully attacked; and some degree of uncertainty, as to the time of re-publication, accompanied’ the evidence of the other. THE COURT stated to the jury, that the cause filmed altogether on the fact, whether the will was re-published after the 13th of June. 1S12, or not; and left it to them to weigh the credit b't the witnesses, and to find their verdict according to the conclusion they might come to as to that fact. Verdict for plaintiff. .. .