Beatty v. Mason

• Decision Date: 18 March 1869
• Citation: 30 Md. 409
• Parties: GEO. J. BEATTY, and others, Lessors, v. FRANCIS A. MASON, and others.
• Court: Maryland Court of Appeals

30 Md. 409

GEO. J. BEATTY, and others, Lessors, v. FRANCIS A. MASON, and others.

Court of Appeals of Maryland

March 18, 1869

APPEAL from the Circuit Court for Allegany County.

The facts of this case are sufficiently stated in the opinion of the Court.

The cause were argued before BARTOL, C.J., STEWART, BRENT GRASON, ALVEY and ROBINSON, J.

J H. Gordon, for the appellants.

Geo. A. Thruston and Thos. J. McKaig, for the appellees.

BRENT J., delivered the opinion of the Court.

Although this case has been most elaborately argued, and a great many questions of law submitted for the consideration of the Court, a careful examination of the record shows that the points really at issue are but few; and these, with one exception, have been judicially decided.

In the first, second, and sixth exceptions, the lessors of the plaintiffs to support their title to the tract of land for which this action is brought, offered in the several aspects therein mentioned, what purported to be a copy of the last will and testament of James Beatty, from the records of 1820 of Fayette county, in the State of Kentucky. The Court below rejected it as evidence admissible in any of the aspects in which it was offered, and in this the appellants allege there was error. In the case of Budd vs. Brooke, et al., 3 Gill, 232, this Court in deciding upon the admissibility, as a muniment of title of a copy of the will of George Mason, which had been admitted to probate in Virginia, in 1716, and which was certified under the act of Congress, as in due form and by the proper officer, to be a true copy from the records there, use this language: "As respects the copy of George Mason's will offered in evidence by the appellee, we cannot entertain a momentary doubt of its inadmissibility. Of wills of land in Maryland, our own Courts only are authorized to take probat." Sections 324 and 325, of Article 93, of the Code of Public General Laws, cannot be construed as affecting the doctrine announced in this case. They are codified respectively from the Acts of 1785, ch. 46, secs. 2 and 3, and 1798, ch. 101, sub-ch. 2, sec. 4, which were in force at the time of its decision in 1845. Instead of these sections of the code making any change in the law, the case of Budd and Brooke, is to be taken as construing them in regard to their application to a copy of a will from the records of another State, when offered in the Courts here for the purpose of proving title to land. As all the offers of the copy of James Beatty's will, in the three exceptions referred to, depended upon its probat in Kentucky, and its being a true copy from the records of that State, it was clearly inadmissible.

Section 327, of Article 93, of the Code, is a literal copy of the Act of 1854, ch. 140, which was no doubt passed by the legislature to remove some of the difficulties to which parties were subjected, under the law as announced in Budd and Brooke, in establishing title to land in this State under foreign wills. The appellants claim that under it the copy offered and rejected by the Court in the third bill of exceptions, should have been admitted. If a copy of the will in question, authenticated as this section requires, had been recorded in the office of the register of wills of Allegany county, in this State, a copy from the records in that office properly certified, would, unquestionably, have been admissible as prima facie evidence. The section expressly provides that such copies shall be evidence "in all suits and actions at law, and in equity, in any Court in this State, wherein the title of any property real or personal, thereby devised or given, shall be in question." In looking however to the certificate of the register of wills of Allegany county, to the copy offered in evidence, we find he does not certify it to be a true copy of a certified copy of the original will of James Beatty, late of Kentucky, &c., recorded in his office,--but he certifies only that it is filed for record. Upon a proper construction of this section, when a copy of a will made in another State, and probat is filed for record, it is the province and duty of the register before it is recorded, to determine in the exercise of a sound judgment, whether it is properly "authenticated in the mode, and by the officer authorized by the laws of such State." This he cannot do before it is presented and filed for record, and the certificate that a copy has only been filed for record, cannot therefore be taken to mean that it is actually recorded. When sufficient evidence of proper authentication is presented, it is made his duty to record it, and a failure to do so would be redressed by suitable application to the Courts. We do not think the caveat filed in the Orphans' Court to the recording of the copy of this will, is within their jurisdiction. The question to be determined is not the probat of the will, but the recording of a copy of a will which has been admitted to probat in another State. The true inquiry is, whether there is sufficient proof to admit it to record under this section of the Code, and this question is to be determined by the register, and not by the Judges of the Orphans' Court. We must not be understood as indicating that a copy thus recorded, can furnish anything more than prima facie evidence. It is subject to the same exceptions as other wills of record, and a party claiming against it, is not precluded from showing that it was not properly autheticated, and should not therefore have been recorded.

The ruling of the Court in the fourth exception presents a...