It was a singular proceeding in the register, to receive the probate of the will of 1794, while the will of 1798 was in litigation; nor can his conduct be justified, unless he acted by the consent of all parties interested. This consent is not proved, but by the assertion of one of the defendants. Nothing appeared on the trial, from which it could be inferred that the plaintiff had consented that the ex'parte evidence of the witnesses to the will of 1794 should be admitted. On the contrary, to take the consent of the plaintiff, as it was stated to the register by one of the defendants, it *512only amounted to this, that if the will of 1798 was set aside, the will of 1794 should stand. But this is a very different thing from making use of the will of 1794 as evidence to destroy the will of 1798. The witnesses should have been produced in court, that the plaintiff might have had an opportunity of crossexamiuing them. The defendants’ counsel suppose, that the will of 1794 having been regularly proved, it ought to have been read in evidence. But under the circumstances of this case, as they appear by the register’s certificate, I do not consider this as by any means a regulaf probate. To make the most of it, it was only conditional, and not to be considered as of any effect, unless the will of 1798 was set aside. I am therefore of opinion that the evidence was properly rejected bv the Circuit Court. The will of 1794 was not legal evidence, because it was not proved by any witnesses appearing- in court.
Ye ates J.It appears by inspection of the two wills of Lie-ry Scaly dated 21st October 1794, and 21st March 1798, that they contain dispositions of the estate of the testator absolutely inconsistent with each other; and it has been admitted by the counsel on both sides, that they cannot stand together. I am at a loss to determine, what effect or operation the probate of the former writing, could have upon the instrument executed three years and five months afterwards as a last will, supposing the testator to be then of sane memory, and that two witnesses attested it.
The two witnesses proved the will of March 1798 on the 12th of April following in the register’s court, and at the prayer of the parties opposed thereto, an issue was directed to try its validity under the act of 13th April 1791. 3 Dali. St. Laws 98. When the facts are established by the return of a verdict, they cannot be reexamined on an appeal, by the express provision of this law. Pending this suit which was thus directed to be tried by a jury of the country, the writing which was offered in evidence on the trial of the feigned issue, was exhibited into the register’s office on the 4th Deoember 1799, and the witnesses sworn thereto, in the absence of the parties who set up the will of 1798. No rule had been entered for the taking of the depositions. No consent, either *513written or verbal, was shewn on the trial, that they should be thus taken. But on the contrary, the certificate of the register is subjoined to the paper thus offered, that the depositions were taken by him on being informed by Hull, one of the defendants, that “ his opponents had agreed thev should “ be taken, upon condition that if the will of 1798 should be “ set aside, then the will of 1794 should stand for the last “ will of the testator.”
This information certainly did not warrant the proceeding of the register. He was not justified in receiving the proof the will of 1794, while the controversy respecting the validity of the will of 1798 subsisted, without some rule of court, or unequivocal consent of the contending parties, authorizing the measure. I cannot regard it as an act done in the line of his duty, but view it in no other light than if the depositions had been taken before any justice of the peace of the county. The procedure was wholly ex parte, and the adversary had no opportunity of crossexamining the witnesses, if the facts which they attested, could throw any light on the validity or invalidity of the will of 1798. It is clear to me, that the evidence offered was properly overruled by the judge who tried the cause, and that the judgment of the Circuit Court should be affirmed.
Judgment affirmed.