Stephens v. Brooks

The Vice Chancellor.

The solicitor who instituted these proceedings, seems to have entertained the idea that it was competent for this court to take proof of a will in a case like that presented by the bill, and have it recorded so that the record would have the same effect as the record of a will properly proved before a surrogate. In this supposition I apprehend there is an error. I cannot find that the statute any where provides for the proof of an instrument by other than the subscribing witnesses, so as to give the registry thereof the same force, effect, and validity as if a subscribing witness had proved its due execution. Provision is made in the Revised Statutes, Vol. 2, page 3, Sec. 16, for the proof of wills before a surrogate, when all the subscribing witnesses are dead. Sec. 17 directs how such proofs are to be disposed of, after they have been taken. And Sec. 18 declares their effect, which is, that exemplifications of such proofs may be received in evidence upon any trial or controversy concerning the same will, after it shall have been proved in such trial or controversy, that the lands in question therein have been uninterruptedly held under such will, for the space of twenty years before the commencement of the suit in which such trial shall be had.

*132By act of 1837, Sess. Laws, p. 528, Sec. 20, it is provided, also, that when all the witnesses to a ,,, ", _ . will are dead, it may be proved before a surrogate, and recorded as a will of personal estate only.

There are likewise certain powers given by statute to the Chancellor, in relation to”wills—to issue commissions when witnesses resided out of the State—and to take proofs of willsgdeposited in any foreign office, as in the prerogative Court of Canterbury. But the Chancellor decides that this power is conferred upon him alone, and cannot be exercised by a Vice Chancellor ; and further, that the proofs of a will so taken and recorded, are not evidence any farther than they would be if taken before a surrogate, under the statute first mentioned. 2 Paige Rep. 429.

So that, on the whole, I do. not perceive that this court has any power so to dispose of this will and the proofs returned, as to make its record effectual proof as a will of real estate.

But a part of the prayer of the bill is for the testimony so taken, to be perpetuated; and this court unquestionably has power to grant so much of the prayer of the bill. 2 Story Commentaries on Equity, page 719. The complainant may therefore, if she chooses, take an order that the depositions returned to this court, together with the will, remain in this court-to perpetuate the memory thereof, to be used in case of the death of the witnesses, or their inability to travel, as there shall be occasion. 2 Story, 723.

The complainant is not entitled to costs; but, on the contrary, the heirs seem to be entitled to costs if they require them. 2 Story, 719.