109 U.S. 608 (1883), Robertson v. Pickrell

Citation:109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049
Party Name:ROBERTSON and others v. PICKRELL and others.
Case Date:December 17, 1883
Court:United States Supreme Court
 
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Page 608

109 U.S. 608 (1883)

3 S.Ct. 407, 27 L.Ed. 1049

ROBERTSON and others

v.

PICKRELL and others.

United States Supreme Court.

December 17, 1883

COUNSEL

[3 S.Ct. 407] J. G. Bigelow, for plaintiffs in error.

Saml. B. Paul and F. W. Jones, for defendants in error.

OPINION

FIELD, J.

This was an action of ejectment for a parcel of land in the city of Washington, District of Columbia. On the trial the

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plaintiffs gave in evidence a conveyance of the premises from the United States to one Robert Moore, executed in June, 1800; and then endeavored to trace title from the grantee through a devise in his last will and testament, bearing date in July, 1803. For this purpose they produced and offered a transcript of proceedings in the hustings court of Petersburg, in the state of Virginia, containing a copy of the will, and of its probate in that court in December, 1804. By the law of Virginia then in force that court was authorized to take the probate of wills, as well of real as of personal estate; and when a will was exhibited to be proved, it could proceed immediately to receive proofs, and to grant a certificate of its probate. Within seven years afterwards its validity was open to contestation in chancery by any person interested; but, if not contested within that period, the probate was to be deemed conclusive, except as to parties laboring at the time under certain disabilities, who were to have a like period to contest its validity after the removal of their disabilities. The transcript was offered, not merely as an exemplified copy of the record of the last will and testament of Robert Moore, and of its probate in the hustings court, but also as conclusive proof of the validity of the will, [3 S.Ct. 408] and of all matters involved in its probate. Upon objection of the defendants' counsel, it was excluded, and an exception was taken to the exclusion. This ruling of the court constitutes the principal error assigned for a reversal of the judgment. We think the ruling was correct. Looking at the transcript presented, we find that it shows only that a paper purporting to be the last will and testament of the deceased was admitted to record upon proof that the instrument and the signature to it were in his handwriting. No witnesses to its execution were called, no proof was offered of the genuineness of the signatures of the parties whose names are attached to it as witnesses, and no notice was given to parties interested of the proceedings in the hustings court. As a record it furnishes no proof of an instrument executed as a last will and testament in a form to pass real estate in the District of Columbia. The execution of such a will must be attested by at least three

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witnesses. It matters not how effective the instrument may be to pass real property in Virginia, it must be executed in the manner prescribed by the law in force in the district to pass real property situated there, and its validity must be established in the manner required by that law. It is familiar doctrine that the law of the place governs as to the formalities necessary to the transfer of real property, whether testamentary or inter vivos. In most of the states of the Union a will of real property must be admitted to probate in some one of their courts before it can be received elsewhere as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such probate. The common-law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also; but the probate is evidence of the validity of the will only so far as the personal property is concerned.

As an instrument conveying real property the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses; or, if they be not living, by proof of their handwriting.

So it matters not that the same effect is to be given in the courts of this district to the record of the hustings court, which, by the law of Virginia, can be given to it there; that is, that it is to be received as sufficient to pass the title to real property situated in that state.

The question still remains, is the instrument sufficient to pass title to real property in the District of Columbia? If so, it should have been produced and proved in the manner mentioned. If, as stated by counsel, it is on file in the hustings court, and by the law of Virginia cannot be...

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