June Term, 1828.
1. A judgment of the county court deciding who is executor of will, is conclusive upon all other courts, and cannot be examined, although it be erroneous.
2. Therefore a copy of the will need not be attached to the letters testamentary, or produced, when they are given in evidence.
3. Slaves of an infant feme pass to her husband, jure marito, although they were hired out by her guardian before the marriage, and the husband died during the term.
DETINUE for several slaves, tried before his Honor, Judge Daniel, on the Fall Circuit of 1827. The plaintiff claimed as executor of John H. Frazier, and on the trial produced the following instrument:
Gaston for the plaintiff.
Hogg and Badger contra.
"It having been certified to us that John H. Frazier, late, etc., is dead, and having made his last will and testament in writing, a copy of which is hereunto annexed, and therein appointed James Granbery executor thereof, who was duly qualified and took upon himself the burthen of the execution thereof: these are therefore to authorize and empower the said J. G., etc."
No copy of the will was annexed to the letters, neither was one offered in evidence.
It was objected by the defendant that a copy of the will was a necessary part of the plaintiff's title, and that the negroes in question did not, of course, vest in him if Frazier had title, solely because he had proved the will and qualified as executor. His Honor reserved the question and the plaintiff went on with his case, when it turned out that the slaves in dispute were the property of one Lucy Granbery, a minor, and were on 1 January, 1820, hired out by her guardian for one year. In April, 1820, Lucy Granbery intermarried with the plaintiff's testator, who died in the month of August following, leaving his wife surviving. The negroes never were in the actual (457) possession of the plaintiff's testator, but continued in that of the persons who had hired them from the guardian of the wife in January previous.
The defendant Mhoon intermarried with the widow of the plaintiff's testator.
His Honor instructed the jury that upon these facts the negroes never vested in the plaintiff's testator, and that the defendants were entitled to a verdict, which being returned accordingly, the plaintiff appealed.
It is not to be controverted that an executor derives all his powers from the will. But whether there is a will and who is the executor thereof are matters of ecclesiastical cognizance, and consequently the decision of the ecclesiastical courts on the subject is conclusive. They adjudicate that this is the will of A. and that B. is the executor thereof; and when in other courts it is necessary that B. should sustain the character of executor, that adjudication is conclusive. The will is therefore improper evidence of that fact, for that adjudication is the only evidence competent to prove it. Suppose from the words of the will it is matter of doubt whether A. or B. is executor, and that court should decide in favor of B. If the probate of that will should be offered in evidence in another court and the whole will as well as the adjudication set forth, such other court, whatever it might think upon the subject, would be bound to consider B. as the executor. The will, therefore, was entirely unnecessary to be produced in court; for whatever were its provisions, it could not affect the decision of the cause. The only question, therefore, which can arise in this case in regard to the plaintiff's character as executor is this, Do the letters testamentary, or the certificate offered in this case, prove that fact? I think that they do. It is a testimonial given by the court that they have adjudicated (458) the plaintiff to be the executor. It is wholly unnecessary to append a copy of the will to such a testimonial, for it can answer no purpose. It does not follow by any means that this certificate or letters testamentary are the only means by which it can be shown who is an executor. The adjudication can be proved by the production of the original records or minutes of the court, if they are shown to be such, or a copy under the seal of the court (as I take this to be, not a bare certificate), or by a sworn copy when offered to a jury as in this case, or by any other means by which the proceedings in one court are given in evidence in another, with this difference: when offered in evidence to the court, as under a profert, the record must be in that form which proves itself, that is, the original, proved to the court to be such, or a copy under the seal of the court.
The county court in this State, to which has been transferred the probate of wills, stands in the place of the ecclesiastical court of England, and what has been said in regard to the latter applies to the former.
As to the other point in this case, it falls completely within Whitaker v. Whitaker, ante, 310. The plaintiff is therefore entitled to a new trial. The defendant is not entitled to a nonsuit, for the evidence was properly received.
PER CURIAM. Judgment reversed.