Doe on the dem. of Ward v. Hearne, 48 N.C. 326, 3 Jones 326 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 326, 3 Jones 326

Doe on the dem. of JOHN WARD et al. vs. EBEN HEARNE.

A devise of land lying in this State, by a citizen of another State, can have no validity or operation unless it is proved by the oath of witnesses before the proper Court in this State, to have been properly executed according to the laws of this State.

Tins was an action of ejectment, tried before Ills Honor, Judge Caldwell, at the Spring Term, 1856, of Stanly Superior Court.

On the trial of the cause the plaintiff offered in evidence a copy of the last will of William Thornton, who resided, before and at the time of his death, in the District of Columbia; in and by which ho devised to his wife, A. M. Thornton, certain^ real estate in the County of Montgomery, now Stanly, a part of which is the subject of this suit. The introduction of the will was opposed by the defendant, on the ground that it did not appear from the certificate of probate, in Stanly County Court, that it had been proved before the said Court, as required by the act of 1844.

This certificate is as follows:

“State of North Carolina, 1 Court of Pleas and Quarter Ses-Stanly County. j sions, May Term, 1853.

It appearing to the satisfaction of the Court that the last will and testament of William Thornton, herewith attached, has been duty proved in the proper Court, in Washington County, District of Columbia, according to the laws : and it further appearing to the satisfaction of the Court, that the said will and testament was executed according to the laws of the State of North Carolina, and is of sufficient validity to pass lands in the State of North Carolina: It is therefore ordered by the Court that, the said last will and testament be allowed, filed and recorded in this Court.

Witness, Richard Harris, Cleric of said Court, at office, the 2nd Monday in May, 1853, and the 77th year of American Independence.

R. Harris, Clerk.”

The Court being of opinion “ that it was to be inferred from Baid certificate that said will had been proved as by said statute required, received said copy in evidence. To which the defendant excepted.”

Yerdict for the plaintiff. Judgment and appeal to this Court by defendant.

Moore, Bryan and Mendenhall, for the plaintiff.

Ashe, for the defendant.

Pearson, J.

In Drake v. Merrill, 2 Jones’ Rep. 368, it is said: “ In England the probate of wills'of personal property is made before the ordinary; if the instrument also contains a devise of real estate, such probate before the ordinary has no effect in regard to the devise, and the execution of the instrument as a devise, must be proved before a jury, upon an issue involving the question of title, in the same way that the execution of a deed or other conveyance of land is proved.”

It is also said, in Ward v. Hearne, Busb. Rep. 184: “ The acts of 1784, 1835, and 1844 are examined and discussed, but it was not necessary to notice the distinction between the provisions in regard to the probate of wills respecting personal property, and wills containing devises of land.” The distinction is pointed out:—the statutes are discussed and explained in regard to devises, and it is decided that a devise of land, situate in this State, can have no validity or operation unless its execution is proved, by the oath of witnesses, before the proper Court in this State.

In our case, the order of the County Court of Stanly “ that the will be allowed, filed and recorded,” was made upon the certificate of probate, taken before a Court in Washington County, District of Columbia. So, the execution of the instrument as a devise, as distinguished from a will of personal property, has not been proven by the oath of witnesses before the proper Court in this State. There is error. Venire de novo.

Per Curiam.

Judgment reversed.