Ferguson v. Hunter

• Decision Date: 31 December 1845
• Citation: 7 Ill. 657,2 Gilman 657,1845 WL 3983
• Parties: ROBERT FERGUSON et al.v.CHARLES W. HUNTER.
• Court: Illinois Supreme Court

2 Gilman 657

7 Ill. 657

1845 WL 3983 (Ill.)

ROBERT FERGUSON et al.

v.CHARLES W. HUNTER.

Supreme Court of Illinois.

December Term, 1845.

EJECTMENT in the Madison circuit court, brought by the plaintiffs in error against the defendant in error, and heard before the Hon. Gustavus P. Koerner and a jury, at the October term, 1845, when a verdict of ““not guilty” was rendered.

The evidence adduced upon the trial, and afterwards excluded by the court, will appear in the opinion of this court.

W. MARTIN, for the plaintiffs in error.

I. The will offered in evidence was duly made and proved conformable to law, when probate thereof was made.

The court of probate that passed upon the will was a court of record, having original and exclusive jurisdiction over the probate of wills. The law required that the court should be satisfied that the will was duly executed, before probate could be allowed. An officer required by law to do a certain act in a particular manner is presumed to have acted as the law required, until the contrary is shown. The law did not require the court of probate to spread upon the records the evidence upon which probate of the will was allowed. The will being found upon the records of the court of probate, was sufficient proof that the will was duly proved before it was placed there. Hence a certified copy of it, under the seal of the judge, was competent evidence to go to the jury in the trial of this cause.

II. The probate of the will was a decision of a court, on a subject matter within its jurisdiction, and until reversed is binding and conclusive on all other courts, and can not collaterally be questioned.

This doctrine can not be questioned. The laws of this State, previous to 1837, conferred upon the probate court the dignity of a court of record, and made the probate of a will a judicial act. From a decision, admitting or rejecting a will, the party aggrieved by such decision, had a right to an appeal to the circuit court, and there to have the judgment of the probate court, if erroneous, reversed. If no appeal is taken, the judgment of said probate court is conclusive. For this doctrine, see 3 Term R. 125 to 131; 1 Johns. Ch. R. 155; 2 Cond. R. 306; 9 Peters, 180; Poplin v. Hawke, 8 New Hamp. 124; 16 Mass. 441; Jacob v. Pulliam, 3 J. J. Marsh. 200; Jackson v. Rumsey, 3 Johns. Cases, 234.

III. The paper offered was properly authenticated, and should have been received in evidence. The law of 1823 provides that copies of the entries of the records of all public officers, certified, etc., shall be legal evidence. The office of the court of probate is one of the public offices alluded to, and the record of wills, form a part of the records of the office. Hence a copy of the will admitted to probate, is competent evidence, as being a copy of the records of a court of record. Owings v. Ulery, 4 Bibb, 450, 451.

N. D. STRONG, for the defendant in error.

This is an action of ejectment to try the title to the other half of the city of Alton. A will was introduced, which was defective, and the case failed.

I. The will was not proved according to law. Territorial Acts of 1815, 215, § 32.

The object of the law was to make lands devisable, which could not be done at common law. If a will was made and proved according to law, it would be evidence of title. In this case, the will was signed by two witnesses, and thus far the law was complied with. The land was in Madison, but the probate of the will was made in St. Clair, by one witness. It is true that the executor made oath, but he was not a “credible” witness, the law meaning “competent,” being a devisee and interested. There was no “other legal proof.” The probate court had no discretion in the matter; it was bound by the statute. The statute is a literal copy of the statute of Pennsylvania upon the same subject, except that, being a Quaker State, the word “oath” is not used in it. Gordon on Decedents, 40.

The will should have been proved according to the law existing at the time of the death of the testator, as it then took effect. It is assimilated to a deed made, but not delivered. A deed may be kept in the pocket three years, but it is not effectual until a delivery; so, in case of a will, the death of the testator operates as a delivery.

Under the statute of 1819, section 22, a will must be signed and witnessed in the presence of the testator and two persons who must see each other sign. All three must be present. The language is imperative. In this case, the requisite legal proof was not made.

II. The plaintiffs in error say that the action of the

court of probate is conclusive. The law says that the will, if proved as required, will be proof of title.

As to proof of a will, see 1 Phil. Ev. 397, Cowen and Hill's Ed.

Proof of a will is a ministerial act. Laws of 1837, 177, § 5. This question must have come before the court incidentally, in the case of Ackless v. Seekright, Breese, 46, the opinion in which was given by Chief Justice Reynolds, late governor of Missouri.

The case of Lessee of Adams v. Jeffries, 12 Ohio, 253, was argued on the ground of the court having jurisdiction over the subject matter, but the Supreme court decided that it must appear that the parties were before them.

Some States have decided that probate of a will is conclusive to show title to land, but in those cases, probate was made by a court, which was a court, on notice to parties, and where the matter was tried. A court of competent jurisdiction had passed upon it.

There was no proof that Davis was dead, a fact necessary to be proved in order to give the probate justice jurisdiction. A person once shown to be living is presumed to continue living until proved dead. Nor was there any proof that it was of record in his court. Judgments, by the common law, only bind parties and privies.

MARTIN, in reply.

It is neither a widow, nor an heir, who is now asking for a rigid construction of this will, but a mere trespasser, who shows no title whatever.

The whole current of American decisions is, that the probate of a will is conclusive, and can not be collaterally inquired into. Tarver v. Tarver, 9 Peters, 180; Poplin v. Hawke, 8 New Hamp. 124.

These matters are required to appear of record.

The defendant objects, that there was no proof of the death of Davis. No certificate of the fact was necessary, but the fact was proved. The court will not presume that the probate justice was guilty of fraud. The law requires him to perform certain duties, and he is presumed to have performed them, until the contrary is shown.

Neither was there any requirement that proof should be made in the county where the land was situated at the time of the execution of the will.

As regards the fact of death, the law does presume a man to be dead, if he is absent seven years.

A certified copy of the will is made evidence by the statute, it being a matter of record.

The case cited from the 12th of Ohio Reports has nothing to do with this case, and as to the decision in Pennsylvania this court will not recognize it, unless the Pennsylvania statute is before them.

SCATES, J.^a1

Ejectment by the plaintiffs against the defendant in error.

The plaintiffs read in evidence an exemplification of a patent from the United States to one Samuel Jaqueway, and a deed from Jaqueway to one Jesse Davis, for the premises in question. They then offered in evidence an exemplification of the will of said Davis, by which he devised the premises to one Joseph N. Creamer after the expiration of a life estate therein to Philip...