
    Columbia,
    
      November Term, 1814.
    Joseph Davis, et al. Legatees of Thos. Port, vs. The Legatees of Mrs. Frances Port.
    Witherspoon & Blanding, for the Motion.
    
    Daniel, Contra.
    The judgv th^ordi. narj upon a will in - common not, after be contro. ^petition t0 prove, solemn m fo™'
    Petition for Probate. The certificate of Harllee, Ordinary of Marion District.
    October 5th, 1812. Atan adjourned court of Ordinary, held this day, at Marion court-house, to have the will of Thos. Port, proved in due and solemn form of law. The legatees of Mr. Thos. Port, having appeared by their counsel; and the legatees of Mrs. F. Port having also appeared by their counsel, all the parties being ready for trial, the court proceeded to the same.
    The will of Thomas Port was then offered to be proved by Wm. Bellone, one of the subscribing witnesses to the same; but the counsel for the lega-^ees ^r‘ P°rt objected, on the ground that the same paper had been propounded, as the will of Thomas Port, and rejected by the court of Ordinary, in 1777 : and to support this objection a dedi-mus was produced, signed by the ordinary of the state, directed to Francis Button and Samuel M. Smith, or either of them, to take the depositions of the witnesses to the said will. Upon the dedimus, there was an indorsement, signed by Francis Button, purporting to be an affidavit of the witnesses, that the said Thomas Port was not of sound mind and memory, at the time of his executing the said will. This affidavit was not signed by the witnesses. The counsel for the legatees of Mrs. Port, also produced letters of administration of the estate of Thomas Port, granted by the said ordinary to Mrs. F. Port and Bejamin Port, in March 1777, after the date of the dedimus, aforesaid; as further evidence to prove that the Court of Ordinary had refused to admit the said paper as a will. The counsel for the legatees of Mrs. Port produced, as further evidence to prove that the Ordinary had adjudged this case, the following-indorsement on the dedimus, “ not proved.” The counsel for the legatees of Mrs. Port contended, that inasmuch as the will of Thomas Port had been rejected, when offered for probate in common form the legatees were now barred, by lapse of time, from proving the will in solemn form of law: and of this opinion was the Ordinary. Whereupon the legatees of Thomas Port appealed.
    The case was tried before his honour judge Smith, at Marion court-house.
    
      The proceedings which were had before the Ordinary,' were certified to the court, and Mr. With-erspoon, as attorney for appellants, tendered the following issue, to wit: “ That the said Thos. Port , _ . . , mi i had duly made and executed his last will and testament, and that the same ought to be admitted to probate but the counsel for the legatees of Mrs. Port, refused to join in this or any other issue to the jury. The case was called, and Mr. Wither-spoon stated this refusal to the court, and insisted on his right under the act to submit this case to a jury. His honour overruled the motion of Mr. Wither-spoon; and he then stated to the court, (as he had done to the Ordinary,) that he was prepared to prove the due execution of the will, by one of the subscribing witnesses, (the other two being dead;) and also the sanity of the testator, by three other disinterested witnesses; that the witnesses to the will had never been sworn to the affidavit which was indorsed on the back of the dedimus ; (none of the witnesses names appear to the affidavit;) that he held in his hand a lease and release of a tract of land, which the testator hail executed, the lease bearing date the day of the date of the will, and the release the day after; in which deeds Frances Port, the wife of Thos. Port, joined: and Benj. Port, the brother-in-law of the said Thos. Port, was a subscribing witness; nor has the validity of the said deeds ever been questioned. It was further urged, that the appellants were infants, at the time the will was said to have been rejected, and had no notice that the will was rejected; and that under the will of their uncle, TIios. Port, they took no estate until the death of Mrs. Frances Port, which happened in the year 1811. The court refused to hear any testimony, and confirmed the decision of the Ordinary; from which judgment Mr. Witherspoon appealed.
   Brevard, J.

It has been contended that there was no legal evidence before the court, that the witnesses to the will had ever been examined, touching the execution thereof; or that the will was ever rejected by the Ordinary.

It is not material to enquire, whether in the year 1777, the Ordinary was authorised to issue a dedi-mus, to take the examination of witnesses respecting the execution of a testament; or what was the proper mode of proceeding, at that time; also, the execution and return of such a power, or commission. It is sufficiently certain that the will was before the Ordinary, and was rejected, or not admitted to probate by him. This is clear from the fact that letters of administration, as in the case of intestacy, were granted, which would not have been done, if the will had not been rejected. What the proof was, upon which the Ordinary decided, does not clearly appear, as there was no regular record of the proceedings produced, and it did not appear that better evidence was in the power of the parties to produce. But the granting letters of administration is an admitted fact, from which we must conclude that the Ordinary had declared in favor of intestacy. This was a judicial act of a court having competent authority, and must be deemed conclusive, till repealed by competent authority : and a court of common , r. . J , . law has no right to admit evidence to impeach it. It is to be remembered that this is a question concerning personal estate, the administration of which belonged to the court of Ordinary. As to real estate, the Ordinary has no concern with it; and a will of lands is not to be proved or rejected before him.

The decision of the Ordinary, in 1777, however, was in common form, and all persons interested were not made parties. If the decision had taken place in solemn form, it is admitted that it could not now be a subject of dispute. It has indeed been contended, that the refusal of the Ordinary to admit a testament to probate, does net stand on the same ground as ap admission to probate; and that in the first case the decision may be controverted at any time after a lapse of thirty years and more. But I can find no authority for this distinction, nor any reason for it. It has also been contended; that the decision of a-court of Ordinary according to common form, may be disputed after thirty years; even after forty years; and 8 Vin. Mr. 168. was cited to maintain this point. Finer quotes u Ms. Tab. Feb. 24, (i 1726 — will set aside, after forty years possession “ under it, upon account of the insanity of the de-u visor, and although in prejudice of a purchaser.” It is not said that the will was set aside by the spiritual court. The will must have been of real estate, and set aside in equity.

Swinburne, in treating of the two forms of pror-ing testaments, says, that “ the difference of form u worketh this diversity of effect; namely, that the ic executor of the will proved in the absence of them Ci which have interest, may be compelled to prove u the same again in due form of law. And if the tc witnesses be dead in the mean time, it may en-u danger the whole testament, especially, if ten years be not past since the probation, where the necessary solemnities are presumed to have been (i observed, &e.”' 2 Swinb. Part 6. Sect. 14.

It is probable the word ten (in figures,) may have been mistaken for 30. All other authors agree on this point, that a will proved in common form only, may be questioned at any time within thirty years next after. Godolph. 62. 4 Burr. Eccl. & 207 Lovelass, 212. Toll Sect. 10. Salk. 153. Stra.481 Cowp. 322. 7 Rep. 125. &c. More than thirty years elapsed, after the decision of the Ordinary in this case, before any attempt was made to controvert it.

An appeal might have been made within the time allowed for that purpose. This was not done ; and therefore, when the will was offered to be proved in October, 1812, the Ordinary acted properly in refusing to admit the same.

The counsel for the appellants tendered an issue in the district court, viz: “ That Thomas Port duly made and executed his last will and testament, and that the same ought to be admitted to probate.-” The appellees refused to join issue ;• the judge refused a rule to compel them, and confirmed the decision of the Ordinary. The appellants rely on the act of Assembly, of 1799; which enacts, <f That if any person or persons shall think themselves aggrieved Íí by the judgment, sentence, decree, determination, {i denial or order of any of the courts of Ordinary, i( it shall be lawful for such person or persons to {( appeal therefrom, to the Court of Common Pleas, ii of the district in which the said court of Ordinary {i shall be holden, within twenty days next after i( such judgment, sentence, &c, shall have been ei given.” And the court of Common Pleas are enjoined to hear and determine such appeals, according to the practice of the county courts : And all matters of fact shall be tried by a jury.” The act of Assembly authorises an appeal from the determination of the Court of Ordinary. The party aggrieved was entitled to appeal. It was heard and determined by the court of Common Pleas. But the appellant could not appeal from the decision the Court of Ordinary in 1777 : and if he could, he would not be entitled to do so under the act of Assembly of 1799, for that act limits the time for appealing, to twenty days next after judgment, &e.

But it has been insisted, that the appellants were legally entitled to a trial by jury; and that the court of Common Pleas ought to have directed the issue tendered to be tried. To have done this, would, in my opinion, have been travelling out ol matter before the court.. The matter of the appeal was the decision of the Ordinary of Marion District, whose decision was, that the objection to ^ear*nS evidence in probation of a will, which had been refused admission to probate, in 1777, was sufficient in law : and that after thirty years, the. determination of the Court of Ordinary, rejecting the probate, was not liable to be controverted. It was a question of law, and not of fact. It was indeed contended, that the will had not been refused admission to probate, but no issue was tendered upon that point. The appeal was not made on that ground, though that ground was involved in the case.

To have directed the trial of the issue tendered, would have been admitting evidence to impeach the judicial act of a competent tribunal. The determination of the court of Ordinary, in 1777, ought to be considered conclusive, till repealed.

If the fact, that such a determination was made, had been denied, and an issue had been tendered, with a view to try that fact expressly, the case might require further consideration. But that fact appears to be conceded in the brief, though not in explicit terms ; for the grounds of appeal are, that the witnesses to the will were never examined as to its execution,’ that the legatees were minors, and not barred of their rights by length of time; that the will was not rejected according to solemn form, and after notice to the parties concerned.

As to the limitation of time, I can find no author-t 7 ity giving any- countenance to an exception m favour of minors, allowing a testament, proved or rejected in common form, to be contested, or the decision of a court of Ordinary thereon disputed, after a lapse of thirty years. I conclude that there is no legal foundation for such an exception; and I can discern no reason why there should be any. I am of opinion the motion ought to be refused.

Justices Smith, Bay, and Gkimke concurred.

Colcock, J.

In this case I have the misfortune to differ from my brethren. I am of opinion that a new trial should be granted. A branch of the case was tried before me at Marion, in which an action Was brought for the recovery of the lands devised in the will; on which occasion the evidence stated in the brief, together, with some other evidence not stated therein, but very strong in its nature, established in my mind the following facts : That 'the testator was of sound mind at the time he executed his will; that the Ordinary did not decide on the cause; and that the whole was a trick of those interested in the destruction of the will, to produce that effect; the legatees and present appellants, • be* ing minors at that time. It was contended that granting letters of administration, and the memorandum on the back of the will, prove that the Ordinary did determine on its validity. But when all the circumstances of the case are taken into considera-^0’1’ I think myself warranted hr drawing a different conclusion. At that time there was but one Ordinary in the state, and he resided in Charleston. When the validity of a will was to» be determined, he sent a dedimus protestatum to some persons, residing in the neighbourhood of the witnesses, who examined them, and sent their examination to the Ordinary. This mode of proceeding was adopted in the present case, an d the paper purporting to be an affidavit, was returned. Can it be believed, that any man of business would decide on the validity of a will upon such incomplete evidence? I can not believe it. But it is asked, why then grant administration? Because the party applying for the administration would make the necessary oath, and the Ordinary may have conceived that he could do no more, and therefore viewed it as a case in which no will had been made. This is however a- conjecture, and I do not deem it necessary to say what was the inducement to the act, but to decide on the character of the act itself; for we daily meet with absurdities that we cannot account for. In fact, it is in the nature of absurdities not to be accounted for. The facts thémsclves prove that there was no foundation for the decision; nor do the words i( not proved,” import a decision; we know not when they were made, whether before, or after having received this incomplete evidence attached to the dedimus. Bellune, the witness sworn before me, and the only surviving witness to the will, deposed, that the paper called an affidavit, had been handed to him about the time it was written, and that after reading the contents he refused to sign it; that an attempt was made to explain its meaning, but, the explanation not being satisfactory, he persisted in his refusal.' I will, however, suppose for a moment that the Ordina- ^ * ry had decided, and nevertheless the case ought to be reviewed. Authority was produced from 8 Fin. p. 169. to shew that after a lapse of thirty years a will proved in common form of law, could not be questioned. I am not disposed to dispute this authority, but I do not conceive the case to be anala-gous to the one before me. There the will was proved as wills usually are ; the parties took under the will, and no reason is given why the validity of the will might not have been at first questioned. In such a case, courts will presume that all was done that could have been done. But can that presumption exist now, (supposing it a decision?) For we have on the face of the proceedings, the foundation of the judgment; from which it appears that the judgment was illegal and unfounded. It is not possible to enact laws, and establish rules, which will embrace every possible case with equal precision. It is no doubt a good rule, that a decision, which has been in operation for thirty years, should not be disturbed ; but there certainly may be exceptions: Here the enjoyment of the property would not have been altered, by establishing the will at first, for the testator had devised it to his wife during her life time ; and she lived until 1811. The rights of the present contending parties have never before conflicted. The decision (if one) was made during the minority of the appellants, and such is the usual ef-^ec*s decisions in courts of justice, that they may have supposed it inviolable. On the last ground, h°wevejb I think a new trial should have been granted. For in the case of Fitzpatrick it was decided, ' . that although the parties consented, yet the Ian» guage of the act being imperative, the case of an appeal from the decision of an Ordinary must be submitted to a jury.  