THIS was an action of ejectment by the lessors of the plaintiff, as two of the heirs at law of Isaac Jones, to recover certain lands in Brandywine hundred, of which, as the plaintiff contended, he diedseized and intestate. It was admitted that the defendants were in, possession; that plaintiffs were two of the heirs at law of Isaac Jones, who died on the 29th of September, 1829, leaving two sons, Isaac H. Jones and John C. Jones; and four grand-children, Isaac J. Bush, Edward Pennel, James Pennel and Sarah Ann Hartley, the issue of a daughter, Deborah Jones. Isaac Jones died in possession of the land, and was supposed to have diedintestate; letters of administration were duly granted on his estate, to John C. Jones and Isaac Jones, in December, 1830. A will was afterwards produced, dated 15th January, 1807, which was admitted to probate in the city of Philadelphia.
The defendants claimed under this will. They also set up as a bar to the plaintiff's suit, a deed for the land in question, from Isaac Jones to David Bush, William Larkin and William Keay, intrust for the children of Isaac H. Jones, dated 18th January, 1826, and duly recorded.
An office copy of the will from the register's office in Philadelphia, was offered in evidence, and being objected to, the court for the present directed it to be read, subject to the objection.
The will was dated January 15th 1807; stated the testator Isaac Jones, to be a resident of the city of Philadelphia; was in writing; signed and sealed by the testator writing his own name, and attested by three witnesses. The attestation was in this form — "Signed, sealed, published and declared by the testator, Isaac Jones, for and as his last will and testament in the presence of us, E. Whitehead, Jacob Sullender, Benjamin Brown." The will was admitted to probate on the 1st of June, 1830, on proof of the death and handwriting of R. Whitehead and Benjamin Brown, two of the three subscribing witnesses. There was no sentence or decree allowing the will in terms; but letters of administration, d. b. n. c. t. a., were granted to Weyant and Moor, the defendants in this case.
The record itself was certified according to our act of assembly; (Digest, 556.)
The plaintiffs now called a witness for the purpose of impeaching *Page 503 the will; which was objected to on the ground that a will admitted to probate in another state and certified according to our act, could not be controverted in an action of ejectment, nor before any other tribunal than the register, judge, or court of probate, having either original or appellate jurisdiction.
This question was argued at length by J. A. Bayard for defendant; and by Wales, Rogers, and W. H. Rogers, for plaintiff.
Per Curiam. The question before us is, whether the heir at law can go into testimony to controvert the will of Isaac Jones. We may admit that a probate before our register is conclusive whenever it comes collaterally in question in any other proceeding. The admitting a will to probate is a decree or sentence; it is by a judicial officer, having exclusive jurisdiction; and, upon general principles, the court holds his sentence to be right until it is appealed from or reversed in the regular mode. But this is not a case where any register of our state has ever had this will sub judice. It is not doubted that the lex loci is to govern. Coppin vs. Coppin, 2 P. Wms. 291; Story's Conf. Laws, 398, sec. 474. These lands lie in Delaware. If the courts of Pennsylvania could make a decision setting up a will as to lands here, without any opportunity of reviewing that judgment, it would be violating a great general principle; and, for comity, surrendering the substantial requirements of our law.
We hold, therefore, as at present advised — 1st. That the probate or sentence of our register of a will of lands in Delaware, is conclusive until applealed from, and reversed by due course of law. 2d. That as to immoveable property, the law of the place where it is situated governs, both as to the capacity of the testator and the requisites to the will's validity. 3d. That the validity of a will of lands situate in Delaware, made by a non-resident and not proved here, may be tried in ejectment, if the will be given in evidence by one claiming under it in an action by the heir. 4th. And where such will of lands here has been proved abroad, the foreign probate is not conclusive here, but may be controverted. Another question will arise, as to whether this probate does in fact justify the requirements of our act as to the real estate; and whether the third witness, if alive, should not have been called.
We doubt whether the mode suggested by defendants' counsel, of petitioning our register to review a foreign probate, would be a lawful mode of bringing the matter sub judice here. The clause in the act authorizing a copy to be filed in the office here, seems to be merely for the purpose of making an office copy of such record evidence. We know not how the foreign probate is to be reviewed here, unless *Page 504 we allow the will to be questioned in the trial of an ejectment. It may not be the best mode; may be liable to the objection stated, of bringing the matter frequently into litigation; but it is better than to establish any principle which would prevent parties interested under a will from testing it by the rules of law existing in the place where the land lies.
You may go on and controvert this will.
Jonas P. Fairlamb, the scrivener who prepared the trust deed from Isaac Jones to Bush, Larkin and Keay, was called with a view of proving that said deed had been executed for a special purpose, and not to have the effect which it was now set up for. It was objected that it was not competent for them in a court of law, to controvert the legal effect of this deed. To which it was replied that the deed was never delivered; the trustees never accepted the trust; the deed itself was found among the papers and came from the custody of the grantor; that it never had the force of a deed, and it could be shown that Isaac Jones never meant that it should have.
Court. — In a court of law, and between parties claiming under or against this deed, which has beenacknowledged and recorded, it is not allowable to controvert its legal effect. You may deny its execution either as to signing or delivery, or show the mode of delivery.
Fairlamb. — The deed was signed by Isaac Jones, in my office. The grantees were not there, nor any one else. It was not delivered to them, but I was directed to have it recorded and return it to Isaac Jones, the grantor, which I did. I put the usual question to him, whether he signed, sealed and delivered the instrument as his deed, to which he assented. It was not delivered to me for any one, only left with me for the purpose of placing it on record, and returning it to him.
The plaintiffs now offered in evidence, a copy, certified by the recorder of deeds for the city and county of Philadelphia under his seal of office, of a deed from Isaac Jones to Thomas E. Tunis; and a re-conveyance by Tunis to Jones. It was objected to because it was not authenticated under the act of congress.
The plaintiffs then proved the seal by a witness, and contended that the copy so proved was evidence; that the act of congress prescribing a mode of authenticating records did not excludeother modes of authentication.
Mr. Bayard said if it were necessary he should contend that this was a paper which could not be made evidence by certifying it even according to the act of congress. It was not a record such as is contemplated by the act. No copy of a deed can be evidence in our *Page 505 courts, unless on account of the loss of the original, or unless the same be made evidence by our laws.
Court. — Such a paper as this is made evidence by the act of congress, if certified according to the forms of that act. The proof now offered does not make known to us that this is the proper officer entitled to certify the paper, and that the mode of certificate is in due form. The certificate of the judge furnishes this evidence.
The plaintiff now called an attorney at law, from Philadelphia, who proved the recorder's handwriting and seal, and that he is the proper officer to certify such a record.
The Court. — The constitution of the United States authorizes congress, by general laws, to prescribe the mode ofproving records, and their effect. By the act of 1804, congress has fixed the manner of authenticating this record, which is an office paper, and not a judicial record. As that mode has been prescribed, we think it should be followed, and that it is the only mode; but we will listen to any respectable authority of any state court holding the contrary.
Judge HARRINGTON remarked, that the office copy of a deed made and recorded in another state, acquired the character of evidence hereonly under the act of congress. It is a private paper; admitted to record by the laws of another state; not entitled to record here; and an office copy of it there is evidence only becausetheir act of assembly has made it so. No principle ofcomity would give the same character to it here; for, though we respect judicial decisions on grounds of mutual comity, this has never been thought to extend to private papers, though placed on record by authority of law. An office copy of a foreign deed, independently of the act of congress, is no more evidence in this state than a private copy; which, being secondary, would not be admissible unless the original is shown to be lost. But the act of 27th March, 1804, made under the constitutional provision, does embrace records of this kind, and gives them the force of evidence every where, when certified according to its forms. He thought it necessary, therefore, to distinguish between these quasi records, provided for by the act of 1804, and judicial records; and to restrict the rejection of the paper now offered to records of the former kind; so as to exclude the conclusion that judicial records may not be proved in any other mode than that prescribed by the act of congress. Such a record might be proved by sworn copy and by other modes. 1 Stark Ev. 164, 190; 9 Cranch. 122.
W. H. Rogers, for plaintiff, to the jury contended, that even if Jones' will were valid in Pennsylvania it would not pass lands in Delaware, *Page 506 as the attestation did not show, and there was no other proof given, that the requisites of our statute of wills were complied with. That this could not now be supplied otherwise than by calling Sullender, the third witness, who was not proved to be dead, and must be presumed to be still living. Neither could supplementary evidence be now offered in proof of the execution; as it came here as arecord, and must stand or fall as such, by whatever appears on its face.
The defendants replied, that this was a matter to. be left to the jury who, even under the statute frauds, were permitted to presume a proper execution on proof of the witness' handwriting though the attestation was not full. 2 Strange, 1109; Willes, 1,Price vs. Smith. It was also argued that as the avowed object of the will was to pass lands in Delaware, the parties would be presumed to have acted in reference to the laws of this state, as to the mode of execution.
By the Court.