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will. (Morris v. Keys, 1 Hill's R. 540. Caw v. Robertson, 5 N. Y. R. 125. Hill v. Crockford 24 ib. 128.)

In general, when a copy of any record is made legal evidence, the whole must be certified ; mere extracts will not be received. The authentication of the copy, moreover, whether it be by a certificate merely, or a technical inspeximus or exemplification, should import that it is a copy of the whole. (Vide Cowen & Hill's notes to Phil. Ev. 1050 to 1061.) • It will be observed that by the New York statute, the probate and registry of the will is made prima facie evidence of its due execution and contents, in respect to the realty, though it is conclusive in respect to the personalty. The same is the law in several others of the states, while in some the probate of the will is conclusive in respect to the realty as well as to the personalty. The · difference in the practice will be noticed hereafter. In England, there does not seem to be any provision for the probate of wills of real estate, and where there is no statute upon the subject it is necessary to establish the execution of the will by proof whenever any question arises in courts involving the inquiry. Indeed, in England the validity of a will of real estate is cognizable only in the courts of common law, and in the ordinary forms of suits; and the verdict and judgment are conclusive only upon the parties and privies, as in other cases. While in most, if not all of the United States, courts are constituted by statute, with general power to take the probate of wills, and when such power is conferred in general terms, without making any distinction between wills of personalty and wills of realty, probably such courts may acquire complete jurisdiction over the probate of a will as well of real as of personal estate, and therefore their decrees would be conclusive upon all persons and in all courts. 2 Greenlf. Ev. $ 672.) But this is wholly regulated by express provision of statute as before stated; and, by the New York statute, probate is only prima facie evidence of the due execution of the will as to the realty, while it is conclusive as to the personalty.

CHAPTER XXIX.

THE EVIDENCE IN THE ACTION OF EJECTMENT THE PROOFS WHEN THE

LESSOR CLAIMS AS DEVISEE THE LAWS OF THE SEVERAL STATES, EXCEPTING NEW YORK, IN RESPECT TO WILLS.

Having examined the general rules applicable to wills in all the states, and given the substance of the statutes of England, and of the state of New York in respect to the execution of wills, and referred at considerable length to the points settled by the courts in cases arising under the English and New York wills acts, it will not be necessary to give any thing more than a very brief and succinct view of the laws of the remaining states respecting testamentary devises and the subject of wills.

In the state of Maine, a person of sound mind, and of the age of twenty-one years, may dispose of his real and personal estate by will, in writing, signed by him, or by some person for him at his request, and in his presence, and subscribed in his presence by three disinterested and credible attesting witnesses; and where the witnesses are competent at the time of attestation, their subsequent incompetency will not prevent the probate of the will. Real estate owned by the testator, the title to which was acquired after the will was executed, will pass by it, where such appears to have been his intention. No will is effectual in Maine to pass real or personal estate unless proved and allowed in the probate court; and its probate by that court is conclusive proof of its execution. (Revised Statutes, 1857, ch. 74, SS 1, 2, 5, 15.) So the question of the due execution of a will is disposed of in the court of probate, and cannot arise upon the trial of an action at law brought by a devisee to recover the land claimed to have been devised, provided the court of probate had jurisdiction of the case. (Patten v. Tallman, 27 Maine R. 17.) But the legal construction of a will is exclusively a subject of common law jurisdiction, and is not cognizable by the supreme judicial court when sitting as the supreme court of probate. (Small v. Small, 4 Maine R. 220.) Any will proved and allowed in any other of the United States, or in any foreign country, according to the laws thereof, may be allowed and recorded in the state of Maine, although no will is made valid by the statute that is not executed in the manner prescribed by the laws of that state.

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(Revised Statutes, ch. 64, SS 8, 10. And vide Potter v. Titcomb, 22 Maine R. 300.)

The laws of New Hampshire, in respect to the execution of wills of real estate, are substantially the same as in the state of Maine, except that by the statute of New Hampshire the instrument must be sealed, which is not the case in Maine; and the probate of the will in New Hampshire is also made conclusive as to its execution, the same as in Maine. (Revised Statutes, ch. 156, SS 1, 2, 6; ch. 157, SS 1, 13. Comp. Laws, 401-3.) No will is effectual to pass the title to real estate, unless it has been duly proved and allowed in some probate court of the state, or something equivalent to such approval and allowance has taken place. (Barstow v. Sprague, 40 N. H. R. 27.) And to make a copy of a foreign will and its probate competent evidence of title to real estate in Maine, the will must have been proved before some probate court in the state, or a duly authenticated copy of the will and its probate elsewhere must have been filed and recorded in some probate office in the state of New Hampshire, upon application in writing for that purpose, after due notice, pursuant to a decree of probate to that effect. (Barstow v. Sprague, supra.)

The laws of Vermont, in respect to wills, and the due execution thereof, are substantially the same as in Maine and New Hampshire. (Rev. Stat. ch. 45. Gen. Stat. of 1863, ch. 49.) A will in Vermont need not be signed by the testator in the presence of the attesting witnesses, although the witnesses must attest and subscribe it in the presence of the testator; but if it be so signed, that it can in any event satisfy the statute, and the testator declare it to be his will, in the presence of the three witnesses, this is equivalent to the testator's signing it in their presence. (Adams v. Field, 21 Vt. R. 256.)

In the state of Massachusetts the statute provides that "no will, excepting nuncupative wills, shall be effectual, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator, by three or more competent witnesses.” And the laws of Massachusetts in respect to foreign wills, and the effect of the probate of a will, are the same as in the state of Maine. (Gen. Stat. 1860, ch. 92, SS 6, 8, 21, 22, 38.) It seems that the statutes of none of the New England states require a formal publication of a will by the testator, as required by the wills act of the state of New York. But there must be proof that the testator knew the instrument to be his will, and that he intended it as such; although no formal publication of the instrument, no declaration of its contents, or of its nature, is necessary to satisfy the requirements of the New England statutes. And it seems to be settled that the testator need not execute the document in the presence of the witnesses; that the witnesses need not sign the instrument in the presence of each other; and that all which is required is, that the testator shall see their attestation, or be in a situation where he can see it. His acknowledgment that the instrument is his, with a request that they attest it, is sufficient. And a will in the handwriting of the testator, and signed by him in the presence of three competent witnesses who attest the same at his request, and in his presence, has been held in Massachusetts to be well executed, although the testator does not declare to the witnesses, and they do not know, that it is his will. (Vide Osborn v. Cook, 11 Cush. R. 532. Dewey v. Dewey, 1 Met. R. 349. Hogan v. Grosvenor, 10 ib. 54.) But the testator must see the witnesses subscribe his will, or be in a position that he may see them sign it. And, where two of the three witnesses to the will, when signing it as such, were in a different room from the testatrix, and not in her presence, view, or hearing, although in a room connected by an intermediate room with that in which she was lying ; this was held not to be a sufficient signing by the witnesses in the presence of the testatrix. (Baldey v. Parris, 2 Cush. R. 433.) In Massachusetts, a will devising land must be proved and allowed in the probate court, before it can be used as evidence of title in a court of common law. (Shumway v. Holbrook, 1 Pick. R. 114. Laughton v. Atkins, Ib. 535, 549.)

The statute of Rhode Island in respect to wills is in substance the same as of Maine, the language being: “all devises and bequests of any lands, tenements, or hereditaments shall be in writing, and signed by the party devising the same, or by some person in his presence and by his express direction; and shall be attested and subscribed in the presence of the devisor, by three or more witnesses, or else shall be utterly void.” (R. S. ch. 154, SS 1, 4.) And the probate of the will is made conclusive as to its due execution, the same as in the other New England states. And the law of Rhode Island in respect to foreign wills is the same as in the other New England states. (R. S. ch. 155, SS 1, 5, 8, 9.) The statutes of Connecticut provide that all wills must be in writing, and subscribed by the testator; and no devise or devises of real estate contained in any will or codicil will be held good and valid unless such will or codicil shall be subscribed by the testator, and attested by three witnesses, all of them subscribing in the presence of the testator. (Laws of 1848, ch. 41.) All wills executed out of the state of Connecticut, according to the formalities required by the law of the place where executed, whether of real or personal estate, have the same power and effect of domestic wills to pass real property situate in the state of Connecticut. (Laws of 1856, ch. 44. Laws of 1863, ch. 7. And vide Irwin's Appeal, 33 Conn. R. 128.)

It seems to be the inclination of the courts to consider the order in respect to time in which the testator and witnesses put their names to a will, as immaterial, provided the instrument is in all other respects legally executed, and it was held, where witnesses called to attest the execution of a will subscribed their names as witnesses thereto, and the testator afterward, in their presence, duly executed the same, all which was done at one time, and for the purpose of perfecting it as a will, that such will was duly executed. (O'Brien v. Galagher, 25 Conn. R. 229.)

In the state of Connecticut, the probate of a will is conclusive, as to all matters and facts which such probate inıplies, until it is regularly set aside, in a proper proceeding for that purpose; and it is held that the probate court is the only tribunal competent to decide the question of the due execution of a will. (Fortune v. Buck, 23 Conn. R. 1. Bush v. Sheldon, 1 Day's R. 170. Judson v. Lake, 3 ib. 318.)

It will be observed that there is a great similarity in the statutes of the New England states in respect to the execution of wills. The number of attesting witnesses required is three, and the probate of the will is made conclusive as to its due execution in all of them. In New Hampshire and Vermont, a seal is required to give validity to the will, while it is not necessary in Maine, Massachusetts, Rhode Island and Connecticut. No formal publication of the will is necessary in any of these states, and the testator need not subscribe in the presence of the witnesses or either of them.

In the state of New Jersey a will of real estate must be signed by the testator, or the signature acknowledged by him, and the document must be declared to be his last will, in presence of two witnesses present at the same time, who are required to subscribe

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