The be admitted, unless there be suggestion of fraud, or irregularity, in the attestation or execution. It is true (as you say it has been decided in this courC that one not a party to the probate, is not absolutely bound thereby, but may cause the will to be proven again 3 not, however in the way now attempted, but bv moving the court that took the probate, to have the pai lies concerned in interest cited, and to the evidence íuíos.' rr-rties know the nciat ra-*76tended to be litigated, and are not liable to be surprised, as they may be upon a trial in ejectment, where the defendants, may nos be apprised of the objection to be made t They may not know, that the trill ¡¡self is to be attacked, till the trial comes on, and then it would be too late to prepare for resistance — therefore it seems unsafe, to suffer the objection now made, to prevail. — - Were you by proof, to lay a foundation for presuming that there was such a fraud, as invalidates the will, it would be .incumbent on the defendants to produce the original j, but otherwise, the-presumption is, as the will tras admitted to probate and, registra-, tion by a competent tribunal, that all circumstances necessary 10 its validity were duly established before them.
Stanley, 3 N.C. 75, 2 Hayw. 75 (1799)
March 1799
·
North Carolina Superior Court
3 N.C. 75, 2 Hayw. 75
Stanley and wife vs. -
"jp IECTM ENT. Sirs. Stanley was the heiress of the devisor,, •*-* and entitled to the lands in question, provided the will were not legally executed. It had been proven in the county court, and admitted .to registration, upon the oaths of two subscribing witnesses ; one of whom was a legatee. The defendant tow offered a copy in evidence, and it was objected that a copy ought; not to be received , for the act of 1784, ch. 10, sec. 6, only allows a copy to be given 5a evidence, where the will has beea regularly proved, which in the present case it has not, for it appeals upon the face of the will that one of the legatees was the person who assisted to prove it.