Townsend v. Moore, 53 N.C. 147, 8 Jones 147 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 147, 8 Jones 147

ALEXANDER TOWNSEND, Admr., v. ROBERT S. MOORE, et al.

Before a will can toé received by our courts, as having been established by a tribunal in another State, it must appear by the record that such Will was duly-passed on by it,-and that such, tribunal was the -court of probate of the domicil.

This was a motion in the County Court of Robeson, to have recorded a paper-Writing, purporting to be a copy of the last will and testament of Robert Pittman. Thp order was made accordingly, and the defendants appealed to the Superior Court, where Saunders, J., refused the motion with costs, and the plaintiffs appealed to this Court.

The decedent, according to the language of tiie paper-writing offered, had lived in Robeson County, North Carolina, but then was of St. Clair . County, Alabama-. The. basis of this application was this certificate ■: '

“ State of Alabama, St. Clair County.

“ Personally appeared before me, James Rogan, Judge of tlie County Court of said county, John E. Dill’ and C. C. Parrar, two of the subscribing witnesses to the within will, whor being duly sworn, deposeth and saith that they were present at the time said will was signed, and that they saw the same signed and acknowledged by Robert Pittman, for the purposes, therein contained, and that the said Robert Pittman was, at the-time of signing the same, of sound mind. John P. Dill,

€'. C. Parrar-.

Sworn- to, and subscribed before me, this 30th day of June, 1838. >

.James Rogan, Judge of County Cb-urt”’

Also-, this further certificate.

“State(Of^Missisfippi^ J. Probate Court, October Ten», 1838v

Then was this will admitted to- probate, and ordered to be-recorded. Thomas Rhodes,. Cl’k.”

“State of Mississippi, 1 Carroll County, j

I, A. M. Nelson, Clerk of the probate Court, of said county, hereby certifiy that the foregoing is a true and! correct copy of the last will and testament of Robert Pittman, deceased, its the same appears of record in my office with, book A,, page 13. Given under my hand and the seal of office, at Carrollton. February 21st, 1857.”

Then comes the certificate of the Judge of the probateGourt,. 11 July, 1857, to the effect that Mr. Nelson, was th& cleric, “duly commissioned, and that full faith and credit should be given to his official acts.”" Signed by Joseph Drake,, Judge of the Carroll probate Court.

Upon this evidence the Court refused to have the paper-writing admitted to record. "Whereupon the plaintiffs ap<pealed.

No counsel appeared for the plaintiff in this Court..

Fowle, for the defendant.

Manly, J.

Under the provisions of the Revised Code, ch. 119, sec. 17, the will of one, domiciled in another State, admitted to probate there according to the requirement of the law, will be admitted, in the courts of this State, as proved in respect to personalty, and put upon the records. To entitle a case to this comity, it is necessary, however, that the will «hould be proved at the place of the domicil, and that an exemplification of the will and probate should be duly certified to us by the proper officers of the court, with the information that it is in due form. It will then become the duty ••of any court in this State, where there are goods of value belonging to the deceased, to spread it upon its records and issue letters thereon. The law, in respect to such matters, in 'view, especially, of our statute law upon the subject, was ■.fully discussed in Hyman v. Gaskins, 5 Ired. 267, and in Drake v. Merrill, 2 Jones, 368. We deem it unnecessary, •therefore, to say more at present.

Referring to the documents now before us, it will be seen that the testator was of St. Clair county, Alabama, where a probate is first had of his will. It then seems to have been propounded in some form, in Carroll county, Mississippi, where it was admitted to probate also. The copy, which we lhave, is from Mississippi, and is certified by the clerk of the •probate Court for Carroll county, to be .a true copy. We are unable to discover from its contents, whether the original, or a, copy was sent to Mississippi, but in either case the exemplifi•cation sent us is not a compliance with the law. In the absence •of the original, (which we suppose might have been brought into North Carolina and proved) it is proper that we should .have a copy and an exemplification of the proceedings, properly certified from the Court of probate, at the domicil. At best, we have only a certificate from the Court of Carroll •county that certain matter was certified to that Court. A copy of a copy, in record evidence, is inadmissible. Whether it be duly proved according to the law of the domicil, we are mot informed. It is indispensable that the probate Court in Alabama should adjudge the paper, upon the proofs, to be the last will and testament of the deceased, and that this should he certified directly to us.

There is no error.

Per Curiam,

Judgment affirmed.