
    McCarty B. Melvin et als. vs. Aurora Lyons.
    Where, in an action of detinue for the recovery of certain slaves, upon the trial in the circuit court, the plaintiffs offered in evidence a copy of a will, duly attested under the act of congress on the authentication of records, which will purported to have been duly probated in the state of Virginia, and under which will the plaintiffs claimed title, as devisees and the heirs of devisees, the refusal of the circuit court to admit the copy in evidence, because there was no proof that the will had been proved and admitted to record in any probate court in this state, was held to be error.
    It is a general rule, that before any testamentary paper can be admitted in evidence, it must receive probate of the proper court.
    The copy of a will, which has been duly probated in any state in the union, is admissible in evidence in this state, when certified according to the act of congress of May 26, 1790, prescribing the mode in which the public acts, records and judicial proceedings in each state shall be authenticated, so as to take effect in every other state.
    It seems, that the statute of this state, (H. & H. 388, § 13,) which provides that authenticated copies of wills, proved according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this state, may be offered for and admitted to probate in the probate courts of this state, but subject to be contested and controverted in the same manner that the original might be, was not designed to establish a rule for the admissibility of a copy of such will, in evidence on a trial in the circuit courts, at the suit of persons claiming under such will, in the face of the act of congress of May 26, 1790, no such rule, even if designed, would be valid.
    
      In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge of the second judicial district, presiding.
    This was an action of detinue, brought by McCarty B. Melvin, Mary McCarty Melvin, James Melvin, Sarah Eliza Melvin, Mehitable Melvin, Freelove Melvin and Mary Melvin, the said Sarah Eliza, Mehitable, Freelove and Mary being minors, and suing by the said James Melvin, their next friend, against Aurora Lyons, for the recovery of certain slaves. Upon the trial, the plaintiffs offered to introduce, in evidence, the will of Mary McCarty, which was properly authenticated, according to the act of congress on that subject, as having been admitted to probate in Fairfax county, in the state of Virginia, where the said Mary McCarty died. The defendants objected to the reading of this will, because there was no proof that it had been proved and admitted to record in any court of probate in the state of Mississippi; which objection, was sustained by the court below. And to this opinion the plaintiffs excepted ; and prosecuted this writ of error.
    
      Sanders and Price, for plaintiffs in error,
    contended,
    1. That the 13th and 14th sections of the law in How. & Hutch. 388, applied only to the case where the executor or other representative of a deceased testator, whose will had been admitted to probate abroad, desired to obtain letters testamentary or of administration with the will annexed in this state, in order to administer upon such estate as in other cases of administration •, and did not apply to cases where a party claimed under such will as devisee, property embraced in it, and insisted upon his absolute right of property under the will.
    2. That these sections never could have been intended to establish a rule of evidence for the admissibility in evidence of foreign probated wills.
    Such a construction would lead to incalculable mischiefs, and become the fruitful instrument of fraud; and would, moreover, conflict with that provision of the federal constitution, which provides; “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and the congress may, by general laws, prescribe the manner in which such act?, records and proceedings shall be proved, and the effect thereof.”
    
      J. T. McMurran, for defendant in error.
    1. By the provision of our statute, a foreign probated will is admitted to record and subject to the same contest as the original will would be in our probate court. But the party would be deprived of this right if the copy could be admitted in evidence, as contended for by the opposite counsel; it would be conclusive on him.
    2. Wills probated in a foreign country and sister state, stand alike under our statute, and we refer the court to the decision of the supreme court of the United States in the case of Armstrong v. Lear, 12 Wheat. R. 169, 176, in support of our position.
    Until the will shall be probated in our own state, a copy of it is inadmissible, and it is of no legal-validity. The case of Kerr v. Moon, 9 Wheat. R. 565-571, is to the same effect with the decision in 12 Wheaton.
   Mr. Justice ThacheR.

delivered the opinion of the court.

This is an action of detinue for the recovery of certain slaves. Upon the trial in the circuit court, the plaintiffs offered, in evidence, a copy of a will, duly attested under the act of congress on the authentication of records, which will purported to have been duly probated in the state of Virginia, and under which will the plaintiffs claimed title as devisees and the heirs of devi-sees. The circuit court refused to admit this instrument in evidence, because there was no proof that the will had been proved and admitted to record in any probate court in the state of Mississippi.

Before any testamentary paper can be admitted in evidence, it must receive probate of the proper court. This is the general rule. The case of Armstrong v. Lear, 12 Wheat. 169, quoted by the counsel of the defendant in error, was a suit instituted against the administrator of General Kosciusko, but the will did not appear to-have been admitted to probate, either in France or in the District of Columbia, where the suit was instituted. Judge Story said, “it is one thing to possess proofs, which may be sufficient to establish, that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing, to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon.” The case before us is, however, widely different. The will had been duly probated in one of the states of the union, and was admissible in evidence by virtue of the act of congress of May 26, 1790, prescribing the mode in which the public acts, records, and judicial proceedings in each state, shall be authenticated so as to take effect in every other state.

We cannot think that the statute of this state, How. & Hutch. 388, $> 13, was designed to establish a rule of evidence in circumstances like this, or that it could do so in face of the act of congress. It seems to have been enacted for a different purpose.

Evidence of the kind here objected to has been repeatedly admitted in our courts without question, nor do we see that any objection to it can reasonably be started. Newell v. Newell et al. 9 S. & M. 56.

Judgment reversed and new trial granted in Adams county circuit court. x  