Quaere, how far a will of lands, duly proved and
recorded in one state so as to be evidence in the courts of that
state, is thereby rendered evidence in the courts of another state
(provided the record on its face shows that it possesses all the
solemnities required by the laws of the state where the land lies)
under the Fourth Article, section 1, of the Constitution of the
United States?
The
lex loci rei sitae governs as to the effect of a
devise in one country of lands in another.
By the laws of Tennessee, the probate of a will of lands in
another state is not made evidence in an ejectment for lands in
Tennessee.
Quaere how far this general principle is modified by
the provisions of the Constitution and laws of the United States in
respect to the faith and credit, &c., to be given to the public
acts, records, and judicial proceedings of each state in every
other state?
The local law of Maryland as to the effect of evidence of the
probate of a will of lands in an action of ejectment is the same
with the common law.
A duly certified copy of a will of lands and the probate thereof
in the Orphan's Court of Maryland is not evidence in an action of
ejectment of a devise of lands in Tennessee.
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This was an action of ejectment in which the present plaintiff
was plaintiff in the court below. His title is derived through a
patent to one John Rice and successive conveyances down to
himself
Page 23 U. S. 466
which it is immaterial to recapitulate, since no question arises
upon this part of the evidence. The defense set up was the statute
of limitations, and in order to bring himself within its
provisions, the defendant received the patent under which the
plaintiff claims as the patent for his own land, and undertakes to
connect himself with it. This gave rise to a variety of exceptions
taken by the plaintiff to the evidence offered by the defendant for
this purpose, to which the defendant replies that should he have
failed in establishing a connection by a chain of title, he has
complied with the statute notwithstanding by proving his possession
within the patent issued to Rice, which, he contends, is all the
connection with a patent which the law requires.
One of the grounds of exception made by the plaintiff is that
the evidence of the defendant proves his possession to be upon a
tract of land essentially different from that which the patent
covers. And not a little difficulty has existed on this part of the
case to understand the counsel when discussing the question of
identity. All this has arisen from omitting to have the
locus
in quo established by a survey -- an omission to which the
Court takes this opportunity to express its disapprobation. It is
true that the case upon this bill of exceptions can be disposed of
without such a survey, but great facility would have been afforded
by a survey in understanding the discussion, which, without it, was
scarcely intelligible. It is very obvious when we refer to the
patent to Rice under which the plaintiff claims
Page 23 U. S. 467
and the entry to Ramsay through which the defendant deduces
title, both of which are made parts of the bill of exceptions, that
they do not describe the same land. On the contrary, that to Rice,
calling for the entry to Ramsay as its eastern boundary, must
necessarily lie without it.
However, we are of opinion that we are not now at liberty to
notice this inconsistency. The bill of exceptions states that the
plaintiff proved the defendant in possession of the land granted to
Rice, and the defendant proved himself in possession of the land
entered to Ramsay, both concurring in the fact that the land in the
defendant's possession was the land in controversy, from which it
certainly results that Rice held a patent for Ramsay's entry. But
the defendant having no patent, the other has, of course, the legal
estate in him, which may be barred by the defendant's possession if
he brings himself within the provisions of the statute.
In order to connect himself with the patent, the defendant
proved a sale of the inchoate interest of John Rice to one Solomon
Kitts, and the next link in his title depended upon the will of
Solomon Kitts. To prove that Kitts devised the land to the trustees
through whom defendant made title, a copy and probate of the will
of Kitts was produced in evidence, duly certified from the Orphan's
Court of Baltimore County, Maryland, in which it seems the will had
been recently proved and recorded. This evidence was excepted to,
but the court overruled the exception and it went to the jury.
Page 23 U. S. 468
The question is whether the evidence thus offered was legal
evidence of a devise of land?
The common law doctrine on this subject no one contests; the
ordinary's probate was no evidence of the execution of the will in
ejectment. Where the will itself was in existence and could be
produced, it was necessary to produce it; when the will was lost or
could not be procured to be produced in evidence, secondary
evidence was necessarily resorted to, according to the nature of
the case. But whatever proof was made was required to be made
before the court that tried the cause, the proof before the
ordinary being
ex parte, and the heir at law having had no
opportunity to cross-examine the witnesses; neither were the same
solemnities required to admit the will to probate as were
indispensable to give it validity as a devise of real estate. At
first it was a question of controversy between the common law and
ecclesiastical courts whether a will containing a devise of lands
should not be precluded from probate although containing a bequest
of personalty also. And the question was one of serious import,
since the common law courts required the production of the
original, whereas the consequence of probate was that the original
should be consigned to the archives of the court that proved it.
This was at length compromised and the practice introduced of
delivering out the will, when necessary, upon security to return
it.
Upon general principles, there is no question that lands in
Tennessee must in all respects be
Page 23 U. S. 469
subject to the land laws of Tennessee. Their laws affecting
devises, and the rules of their courts respecting evidence in
ejectment, must be the law of this case as far as the Constitution
of the United States does not control the one or the other.
With regard to the modification under which the right of
devising may be exercised, there is no question that the power of
the state is unlimited, and wills of realty, wherever executed,
must conform to the laws of Tennessee. The right of determining
whether its laws have been complied with in this respect is a
necessary result from the power of passing those laws. But in this
respect it has been supposed that the right of the states is in
some measure controlled by that article of the Constitution which
declares "that full faith and credit shall be given in each state
to the public acts, records, and judicial proceedings of every
other state." And hence that a will of lands duly recorded in one
state so as to be evidence in the courts of that state is rendered
evidence thereby in the court of every other state, provided the
record, on the face of it, shows that it possessed the solemnities
required by the laws of the state where the land lies.
As this is a question of some delicacy as it relates to devises
of lands, the Court passes it over at present, being induced to
adopt the opinion that the rule could not be applied to this case,
since the laws of Maryland do not make the probate here offered
evidence in a land cause in the courts of that state.
Page 23 U. S. 470
That the law of Maryland, with regard to the evidence of a
devise in ejectment is the common law of England is clearly
recognized in the case of
Smith's Lessee v. Steele, 1 H.
& McHenry 419. In that case as in this, a copy of the will and
probate were offered in evidence and was supported by proof of the
loss of the original will from the office of probates. Yet the
whole argument turns not on the admission of the copy and probate
per se, but whether admissible at all to prove the
existence and contents of the original will. And the court
declared, in permitting it to be read in evidence to the jury, that
it was at liberty to find for or against the original will, not
holding them bound from the production of the probate to find for
the plaintiffs. It is observable also in that case that it is
yielded in argument throughout that the admission of the probate
could only be sustained on the idea that the acts of 1704 and 1715,
now no more in force, permitted the ordinary to take probate of
wills of land. But it has been supposed that the Maryland law of
probates of 1798 has, by express enactment, made such probates
evidence in their own courts. And had it been shown, that such had
been the established construction of that law and the practice of
the state courts under it, this Court would not have hesitated to
relinquish their own views on the correct construction to be given
to that clause.
As it is, we must pursue the suggestions of our own minds with
regard to the legal construction of the act.
Page 23 U. S. 471
The clause alluded to is the 4th sec. ch. 2. art. 3. of the act
in question, and is in these words:
"An attested copy, under the seal of office, of any will,
testament, or codicil recorded in any office authorized to record
the same shall be admitted in evidence in any court of law or
equity, provided that the execution of the original will or codicil
be subject to be contested until a probate hath been had according
to this act."
It is true that the generality of the terms in the first lines
of this clause is such as would, if unrestricted by the context,
embrace wills of lands. It is also true that the previous chapter
in the same article prescribes the formalities necessary to give
validity to devises of real estate; it is further true that the
previous sections of the second chapter indicate the means, and
impose the duty of delivering up wills of all descriptions to the
register of the court of probates for safekeeping after the death
of the testator and until they shall be demanded by some person
authorized to demand them for the purpose of proving them.
But it is equally true that the act does not authorize the
registering of any will without probate. Nor does it in any one of
its provisions relate to the probate of any wills except wills of
goods and chattels.
The clause recited makes evidence of such wills only as are
recorded in the offices of courts authorized to record them. But
when the power of taking probate is expressly limited to the
probate of wills of goods and chattels, we see not
Page 23 U. S. 472
with what propriety the meaning of the clause in question can be
extended to wills of any other description. The orphan's court may
take probates of wills though they affect lands, provided they also
affect goods and chattels, but the will nevertheless is
conclusively established only as to the personalty.
Unless the words be explicit and imperative to the contrary, the
construction must necessarily conform to the existing laws of the
state on the subject of wills of real estate. And when the power of
taking probates is confined to wills of personalty, we think the
construction of the clause recited must be limited by the
context.
We are therefore of opinion that there was nothing in the law of
Maryland which could, under the Constitution, make the document
offered to prove this will
per se evidence in a land
cause. Nor does there appear to exist any rule of law in Tennessee
which could make such a document good evidence under the laws of
that state.
Since, therefore, the charge of the court was general in favor
of the defendants and the effect of each particular piece of
evidence upon the minds of the jury cannot be discriminated, this
opinion disposes of the whole cause.
The case presents several other and very important questions,
but the Court will at present decline remarking on them.
Judgment reversed and a venire facias de novo
awarded.