The Opinion of the Court was delivered by
Scates J.*Ejectment by the plaintiffs against the defendant in error.
The plaintiffs read in evidence an exemplification of a Patent from the United States to one Samuel Jaqueway, and a deed from Jaqueway to one Jesse Davis, for the premises in question. They then offered in evidence an exemplification of the will of said Davis, by which he devised the premises to one Joseph N. Creamer after the expiration of a life estate therein to Philip Creamer, bearing date the 15th day of April, 1817, and tested by Wm. Bridges and Thos. Foster, together with the probate thereof; from which it appears that on the 10th day of March, 1823, Thomas Foster appeared before John Hay, Judge of Probate of St. Clair county, and in vacation, and after being duly sworn, stated that he signed the will as a witness in the presence of the testator, and the testator signed it in his presence, being then of sound mind and memory; and that he was not present at the signing of the other witness. Afterwards, on the 5th day of April, 1823, and- in vacation, one Philip Creamer, the executor of, and devisee for life of the premises, appeared before said Judge of Probate, and stated upon oath, that that was the last will and testament of the said deceased. Then followed the certificate of the Judge of Probate, that the foregoing writing purporting to be the last will and testament of Jesse Davis, deceased, with the certificates thereunto written, was a true transcript of the original as recorded, and dated the 5th day of April, 1823. Letters testamentary were issued thereon the same day to Philip Creamer. The defendant objected to the reading of this in evidence, because the proof was not made according to law. The Court sustained the objection, and excluded it. This is assigned for error, and it is the only error that we deem important to be noticed.
The record no where shows when Jesse Davis died. If he died before March, 1819, the probate of the will should have been made according to the provisions of the Act of 1807, (Territorial Laws, 215, §32,) requiring “ two or more credible witnesses, upon their solemn oath or affirmation, or by other legal proof,” before the clerk of the Court of Common Pleas. The exemplification offered is not proved in this way, nor before that officer, and I therefore suppose that the testator was still living until after the Act of 1819. For by the last Act (Laws of 1819, 231, §22,) although the proof was made before the same officer, yet the Act required two witnesses to the will, and that two should declare on oath or affirmation that they were present and saw the testator sign the will, and in each other’s presence, and that the testator was of sound mind and judgment. By the Act of 1821, (Laws of 1821, 119,120, §§1 & 4,) a Court of Probate was established and vested w-ith all the powers then possessed by 'the Court of Common Pleas. The proof of this will was made in 1823 before the Judge of Probate. The probate should have been made by two subscribing witnesses, according to the Act of 1819. Here it is made by one only. The other witness was not a subscribing witness to the will, and was also incompetent to be a witness, being devisee and executor. The Act of 1807 was not in force at the probate of this will; and we cannot presume that “ other legal proof” was offered, because no such proof could at that time have been received, not being provided for by the Act of 1819. The probate contained in the exemplification shows how it was made, to wit: by the oath of Thomas Foster, a subscribing witness, and by the oath of Philip Creamer. Foster does not state that the testator signed in the presence of the other witness, Bridges, nor that Bridges signed in his presence. So the probate does not comply with the law of 1819.
It is answered to this objection, that the Probate Court is a Court of record, and its judgments and judicial orders are conclusive, and cannot be inquired into in collateral proceedings. ' This is admitted as a principle, that judgments cannot. But this act of taking proof of the execution of the will is a ministerial act. It has been so treated in this Court in the case of Ackless v. Seekright, &c. Bre. 46, where the Court examined and decided upon the probate of a will on the trial of an ejectment, although the will had been proven before the proper tribunal. Mr. Phillips lays down two modes of making proof of wills; one he calls the common mode, as where the executor produces and proves the will, without citing the parties interested; the other in form of law, as where the executor presents the will before the Judge, in the presence of the parties interested, and which, after full examination, is finally allowed. 1 Phil. Ev. 396-7. So, if it be proved in the common form, it may be disputed, but otherwise when established in form of law. Ib. Courts of Probate have exclusive jurisdiction over the personal estate, but have none over the realty. Accordingly, another distinction has been taken, as to the effect of a probate, in the case of Bogardus v. Clark, 4 Paige, 625, that it is conclusive between the parties litigating it as to the personalty, but not even then as to the realty, for over that the Surrogate had no jurisdiction. And in that case, the devisee was allowed to insist upon the validity of the will in relation to the realty, although it had been set aside upon an appeal from the Surrogate.
We are of opinion, that the probate under consideration was a ministerial act done in the common form, but upon insufficient proof to establish its validity for devising lands, not having been proven by two subscribing witnesses, and to have been signed by the testator in their presence, and signed by them in each other’s presence, and his. We are of opinion, that this will is insufficiently proven to pass the title to the land, and that it is competent for the defendant to object to it on that ground, on the trial in this ejectment. As the other evidence offered depended upon the admissibility of this will, it is unnecessary to notice any other question in this record. Judgment affirmed with cost.
Judgment affirmed.
Wilsoit, C. J., did not sit in this case.