In February, 1865, one Samuel S. Thorn, a resident of Oneida county, in the state of New York, and an uncle of the defendants, died testate. At the time of his death he was seized in fee of lot 16 in block 42, in the second ward of the city of Milwaukee. -By his last will and testament, _ which was duly proved, admitted to probate, and recorded, in April, 1865, in the surrogate’s court of said county of Oneida, he devised said lot 16 to the defendants, but subject to the payment by them to one Elizabeth Thorn of an annuity of $86, which was made a charge upon the lot. Indeed, the will provided that if default should be made in the payment of such annuity for three months after any payment should become due on account thereof, the right and title of the defendants in and to such lot should cease and become forfeited, and the same should thereupon become vested in the said Elizabeth, absolutely in fee.
*554Iii October of the same year, the executors of said -will presented to the county court of the county of Milwaukee, a copy of said will, duly authenticated, and a certificate of the probate thereof endorsed thereon, from the surrogate’s court of Oneida county, and prayed to have the same allowed in this state as the last will and testament of the deceased. Due notice was given of the time and place appointed for the hearing, as required by law, and, at the time appointed, the Milwaukee county court made an order, reciting therein the regularity of the proceedings upon which the same was founded, and allowing such instrument as the last will and testament of the deceased in this state. The order also directed that “the said copy of said will, and of the probate thereof, be filed and recorded, and that said will have the same force and effect as if if had been originally proved and allowed in this court.” .This order was made November 13th, 1865, and was recorded, together with the copy of such will, probably immediately thereafter. The record does not show the precise date of such recording. The certificate of authentication, and of the probate of the will, Rom the surrogate’s court, endorsed on such copy of the will, was never recorded in the Milwaukee county court. No further proceedings in respect to said will, or the settlement of said estate, were ever taken in the Milwaukee county court. In December, 1865, the attorney for the- executors, by leave of the court, took such copy of the will from the files of the county court, and although at the time of the trial of this action it appeared that the same had been returned to such files, yet it was not there in May, 1868, when the abstract of title was made.
The deceased left surviving him a widow, Anna M. Thorn, who died November 6th, 1867.
On the 30th day of April, 1868, an agreement in writing, un der seal, was entered into by the parties to this action, in and by which the defendants agreed to sell to the plaintiff said lot 16 for the sum of $12,000, and to execute and deliver to him within thirty days thereafter, a good and sufficient warranty deed *555of the premises, free and clear of all incumbrances, except a certain lease therein described. The plaintiff paid $250 at the time of executing the agreement, and covenanted to pay the defendants, on the delivery of such deed, the further sum of $4,750, and to execute and deliver to them at the same time his notes, and a mortgage upon the lot conveyed to him to se•cure such notes, payable at the times mentioned in the agreement for the balance of such purchase money and the interest accruing thereon. It was further therein covenanted, that should the defendants fail to tender such deed to the plaintiff, duly executed, within the thirty days, they should forfeit $250. This sum was evidently intended by the parties to be the liquidated damages in case of a breach of their covenants by the defendants. It was also covenanted in such agreement, by the plaintiff, that should he fail to pay the said sum of $4,750, and to execute his notes and mortgage for the unpaid purchase money, immediately upon a delivery or tender of such deed, he shall forfeit as liquidated damages the $250 which he paid when he executed the agreement.
On the 80th day of May, 1868, the defendants tendered to the plaintiff a deed of said lot 16, duly executed to him by the defendants and their wives. Ko objection is made to the form or mode of execution of such deed. Upon such tender the defendants demanded of the plaintiff the money, notes and mortgage which he so agreed to pay and deliver to the defendants, on the tender to him of such deed.
The plaintiff refused to accept the deed, or pay the money, or execute such notes and mortgage, because, as he alleged, the deed tendered was insufficient to convey to him the title to the lot, free and clear of all incumbrances, as he was advised by his counsel; but at the same time he offered to accept the deed and fulfil the agreement on his part if the defendants would have letters of administration taken out in this state, and clear the lot from all claim of the executors of the last will and testament of the deceased, and from liability for his debts. .
*556This action was brought hj the plaintiff to recover the $250 which he paid when the agreement was executed, and also the further sum of $250, as the damages which the defendants stipulated to pay in case they failed to perform their covenants.
The complaint sets out the agreement, and the payment of $250 thereon; avers that the plaintiff is, and at all times has been, ready and willing to perform his covenants therein contained; that he has repeatedly offered to do so, and demanded performance on the part of the defendants; and alleges further, that the defendants “ have utterly neglected and refused to perform and fulfil their part of said agreement, and have neglected to convey said real estate to this plaintiff with perfect title in fee simple, or freed from incumbrances.”
The complaint does not specify wherein the defendants have violated their covenants, except in this general manner.
The answer denies that the defendants have failed to perform their covenants, and avers a tender of full performance by them within the time limited therefor by the agreement, and charges that the plaintiff has failed and refused to perform the agreement on his part.
It was developed on the trial, although, as we have seen, not specifically alleged in the complaint, that the objections made by the plaintiff to the title of the defendants, are the following:
1. That the will of the testator has never been so proved, allowed and recorded in this state, as to make it effectual to pass the title to the lot, to the defendants.
2. That the annuity payable to Elizabeth Thorn is an in-cumbrance upon the lot.
3. That the lot is chargeable with the expenses of administration, and the executors may take possession of it at any time.
4. That it is also chargeable with the payment of the debts of the testator, which he owed at the time of his decease.
For the purpose of showing that there were no incumbrances upon the lot when they tendered the deed thereof to the plain*557tiff, the defendants offered testimony tending to prove that tho annuitant had before that time released to them her interest therein ;* that -within a month after the death of the testator, *558tRe executors of Ms will gave tRe defendants tRe possession of tRe lot as devisees tRereof under sucR will, wRicR posession they Rave ever since Reid; and tRat before tRe date of tRe agreement between tRe' parties in respect to sucR lot, tRe estate of tRe deceased testator Rad been fully settled in tRe surrogate’s court of Oneida county, and all Ris debts paid.
TRe proposed testimony was all rejected, and tRe circuit court Reid “ that tRe real estate of a decedent in tRis state, under our statute, is cRargeable witR tRe payment of Ris debts; tRat Ris executors or administrators are entitled to tRe possession tRereof until tRe debts are paid and tRe estate settled and distributed by tRe decree of tRe county court in tRis state Raving jurisdiction; and tRat tRe only evidence admissible to sRow -tRat sucR real estate was discharged from such incumbrance, and that no debt against said decedent existed, is the final decree of said county court, settling and distributing said estate. ” TRe circuit judge thereupon directed the jury to return a verdict for the plaintiff for the amount of Ris claim, to wit, for $500 and interest, which was accordingly done.
A- motion for a new trial was overruled, and judgment was duly entered upon the verdict; from which judgment the defendants appealed to this court.
TRe cause has been twice heard in this court. On the first argument, the court Reid that the testimony tending to, show that the annuitant Rad released her interest in the lot to the defendants was competent testimony, and should Rave been received; and because the same was excluded by the circuit court, the judgment was reversed. A rehearing was granted, not because the court doubted the correctness of its decision upon the question considered, but because the decision of that question was not necessarily conclusive of the case. For it is manifest, that if the title to the lot never vested in the defendants, or, Raving vested in them, if the lot was incumbered otherwise than by the annuity charge, the judgment of the circuit court, notwithstanding such erroneous rejection of testimony, is correct, and should not be disturbed.
*559The first question to he considered, is : Did the allowance of the will in the Milwaukee county court pass the title of the lot to the defendants, in the absence of further proceedings in that court in respect thereto ?
"We think that this question must he answered in the affirmative. The proceedings in the Milwaukee county court, which resulted in the order allowing the will in this state, are a substantial compliance with the requirements of the statute on that subject. R. S., ch. 97, secs. 22, 23 and 24. A copy of the will duly authenticated, and a certificate of the probate thereof from the proper court in Oneida county, were presented to the county court of Milwaukee county, by the executors therein -named; due notice of hearing was given in the same manner as in the case of an original will presented for probate; the copy of the will was duly recorded in the county court; and the instrument was allowed by that court by an order or judgment in due form, and properly made and recorded. These proceedings gave to the last will and testament of the testator the same force and effect as though it had been originally proved and allowed in the Milwaukee county court.
Manifestly, the force and effect of the original probate of the will in that court would have been, to pass the title to lot 16 to the defendants, subject of course to the annuity charge before mentioned, and subject also, in certain contingencies, to- the debts of the testator, if he owed any at the time of his decease, and to the costs and expenses” of administration. If such would have been the effect of the original probate of the will in the county court, then, in like manner, the title passed to the defendants by virtue of the proceedings in that court which resulted in the order or judgment allowing the instrument in this state as the last will and testament of the testator. R. S., ch. 97, sec. 21. The failure to issue letters testamentary or letters of administration in this state does not divest such title; and the issuing thereof is not a condition precedent to rendering the will thus allowed effectual to pass the title of the lot to the defendants.
*560We conclude, therefore, that at the time the defendants tendered to the plaintiff a deed of the lot, they were the owners thereof in fee.
But if there was any valid subsisting incumbrance thereon at that time, it is clear that the plaintiff was not bound to accept the deed; and the verdict and judgment in such case should not be disturbed.
We have already seen wherein it is claimed by the plaintiff that the lot was incumbered.
1. The annuity charge was clearly an incumbrance, and the burden of proof was upon the defendants to show that it had been removed. The testimony offered for that purpose by the defendants was rejected by the circuit court. This court held on the first hearing of the case, as already stated, that the proposed testimony ought to have been received, and that it was error to exclude it. We still adhere to that decision, and deem it unnecessary to add anything to what is said by Justice Cole, who wrote the opinion of the court.
2. The lot was or might be chargeable, in case the personal estate of the decedent which came to the hands of the executors was insufficient for that purpose, with the expenses of administration. This was also prima fade an incumbrance, and the burden of proof was upon the defendants to show that it never existed, or that it had been- removed. They were permitted to show that there was ample personal estate to pay such expenses, but their offer to prove that the estate had been fully settled in the surrogate’s court of Oneida county and the debts paid, was rejected, and testimony tending to prove such settlemenl and payment was ruled out by the circuit court. The burden of proof being upon the defendants to show that such expenses were not an incumbrance upon the lot, they should have been permitted to show that the expenses of administration in Oneida county had been paid. But they were excluded from so doing. This was error.
3. It only remains to consider whether the lot was incum*561bered by reason of any indebtedness of tbe testator at tbe time of bis death.
Tbe testimony tends to show that tbe deceased left personal estate of tbe value of over $15,000, and that tbe real estate of which be died seized, was worth from $200,000 to $250,000; that a notice was duly published in 1867, pursuant to tbe statutes of New York, requiring tbe creditors of tbe testator to produce their claims by a certain time therein named; and that tbe only claims presented against tbe estate of tbe testator, either pursuant to such notice or otherwise, were a claim of one Henner of some $300, being tbe balance of a remaining account between himself and tbe deceased, and another claim for less than $1,000, secured on real estate in Ohio. Tbe latter claim was paid in 1865, and tbe Henner claim was settled in tbe fall of 1868.
No testimony was given or offered tending to show that at tbe time of bis death tbe testator owed one dollar beyond these two trifling debts. Tbe testimony offered by tbe defendants tending to show that both of these debts, and all of tbe debts of tbe testator, if be owed others, were paid before tbe contract was made by tbe parties for tbe purchase and sale of lot 16, was rejected by tbe circuit court. In thus ruling, tbe judge was perfectly logical, for, as we have before observed, be held that tbe only evidence admissible to show that there was no outstanding debt against tbe decedent, was tbe final decree of tbe Milwaukee county court, settling and distributing tbe estate. He also held expressly, that tbe burden of proof was upon tbe defendants to show that tbe debts of tbe testator bad been paid. There being no such final decree of tbe county court in existence, it became impossible for tbe defendants to prove that tbe debts of tbe testator bad all been paid, and the-verdict necessarily was against them.
We think that tbe learned circuit judge was in error upon both propositions. Eirst, we do not think that there was any' presumption, under tbe circumstances, that there were outstand*562ing and unsatisfied debts which tlie testator owed at the time of his death. If .the real estate, of which the testator died seized, was incumbered by reason of the liability that the same might become charged with the payment of any such debts, the existence of such debts is a fact asserted by the plaintiff, and to be proved by him, the same as he is required to prove-any other fact upon the existence of which his right of action depends. There can be no legal presumption that the testator died in debt, and, in the absence of such presumption, the burden of proof is necessarily upon the plaintiff, who asserts the fact, to prove it. Wilsey v. Dennis, 44 Barb., 354 (362); Walker v. Town, 23 Ark., 147; Bolton v.Branch, 22 id., 435; Camfield v. Gilbert, 4 Esp., 221.
Again, were the burden of proof upon the defendants to show that there were no outstanding debts against the estate, we think the court below erred in holding that the only competent evidence of the fact was the final decree of the Milwaukee county court settling and distributing the estate.
Such decree would doubtless demonstrate to an absolute certainty that no creditor of the estate could assert thereafter any claim upon the lot. But this is higher proof than the defendants are bound to make. The plaintiff, it is true, is not bound to take a doubtful title; but he is not permitted to object to the title merely because there is a possibility that it may be incumbered. Hence the defendants cannot .be required to show a clear title by evidence which excludes the possibility of an in-cumbrance. 1 ‘Sugden on Vendors, 352; Ten Broeck v. Livingston, 1 John. Ch., 357.
It seems to us, therefore, that although the defendants might be required in the first instance to prove that the lot was not incumbered by debts, evidence that the will was probated and the estate fully administered upon in the county where the testator lived at the time of his death, would be sufficient prima facie to show that there were no. debts remaining; and would ■change the burden of proof to the plaintiff, if he still asserted *563that the lot was so incumbered. In this view of the case, the testimony offered by the defendants to show such full administration and payment of all claims against the estate should have been received.
The correctness of these views is rendered the more apparent by reference to the provisions of ch. 165, Laws of 1867, which dispenses with the necessity of any further proceedings in a probate court in this state, after a foreign will has been allowed therein, where it shall appear to the satisfaction of the court, by affidavit or otherwise, that there are no debts due from the deceased testator or his estate, to parties residing in this state.
Eor these reasons the court is still of the opinion that there must be a new trial.
By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.
The deed of release offered by defendants in evidence was executed by “ Ann Elizabeth Lake.” The following extract from the opinion by Mr. Justice Cole, filed at the June term, 1870, sets forth the evidence offered in connection with said deed, and rejected hy the court:
Corns, J. We think there must he a new trial on account of the error in excluding the evidence offered on the part -of the defendants to identify the Ann Elizabeth Lake who executed the quit-claim deed to them, as the Ann Elizabeth Thorn mentioned in the will of Samuel S. Thorn. The witness Bloodgood was recalled, and it was proposed to show hy him that he was employed hy both the plaintiff and defendants to draw the contract in question; that the plaintiff and the defendant Samuel S. Thorn, were both present at the time it was drawn, and executed it immediately upon its conclusion; that the fact of the marriage of said Ann Elizabeth Thorn, and the name of her husband John W. Lake, were stated at the time by the said defendant S. S. Thorn; and that it was then and there discussed between the plaintiff and defendant S. S. Thorn, that the release of the said Ann Elizabeth was necessary to enable the defendant to give an unencumbered title to the premises; that the defendant Thorn, in presence of the plaintiff, gave the witness the name of the husband of the said Arin Elizabeth, to enable him to draw the said release, and directed him to draw it and send it on to be executed by said Ann Elizabeth and her husband; that it was there and then understood and arranged between the defendant Thorn and the said plaintiff, that this release was to come back to the witness with the deed from the defendants and their wives, to be delivered to the plaintiff on his fulfilling his part of the contract, and that the plaintiff then raised no question as to the identity of the said Ann Elizabeth; that the plaintiff, when the release was shown him, at the time of the tender of the deed from- the defendants to him as before testified to by the witness, raised no question as to the identity of the said Ann Elizabeth ; and that the question of her identity had never been raised until the trial. It seems to us that this testimony was competent to go to the jury on the question of identity, and that the jury would have been warranted in finding from it, in connection with the other evidence bearing upon the question, that the Ann Elizabeth Lake who executed the quit-claim deed, was the same person as the annuitant named in the will. And, without deciding the other points discussed by counsel, we reverse the case and send it back for a new trial on account of the error in excluding this testimony.