
    *Ex Parte Povall.
    July, 1831.
    Wills — Foreign Probate — Validity.—A copy of a will proved In Louisiana according to the laws of that state, and offered for probate here, is not authenticated according to the act of congress of May 26, 1790, but is authenticated according to the rules of the common law: Hbld, the copy is duly authenticated, within the meaning of the statute of wills, I Rev. Code, ch. 104, § 16.
    Seals — Foreign Court or State — Proof,—The seal of a court of a foreign country must be proved; the seal of a foreign state or nation proves itself.
    Wills — Foreign Probate — Authenticated Copy — Validity. — When an authenticated copy of a will proved in another or foreign state, is offered, for probat here, if the probat shew that the will has been so proved there, as that if proved in like manner here, it could only be admitted to probat here, as a will of personalty, it shall be so admitted; but if the proof in the foreign court of probat be such as if taken here would suffice to establish it as a will of lands, it shall be admitted to probat here also, as a will of lands.
    A copy of the last will and testament of Richard Povall deceased, and of the proceed-ingshad for the proof thereof in the court of probat for the parish of Ascension in the state of Louisiana, was offered by Francis Povall, for probat in this court. The process verbal contained the will, the depositions of two witnesses proving that it was written wholly in the hand writing of the testator himself, and the sentence of the court thereupon in the following words— “The said will being found clothed with all the requisites of the law, and the formalities for the probat of the same having been all duly complied with; it is, therefore, adjudged, ordered and decreed, that the said will be executed, recorded and deposited, according to law.” The copy was certified to be a true copy from the original process verbal of the proof of the will, by Edward Duffet, the judge of the court of probat, under his hand and the seal of the court ; and the governor of Louisiana certified under the seal of the state, that Mr. Duffet was the judge of the court of probat, and that full faith and credit were due to his signature as such.
    And the questions were, 1. Whether this copy, not being authenticated according to the provisions of the act of congress of May 26, 1790, 2 Bior. p. 102, was yet duly authenticated *so as to be admitted to probat here? And 2. Whether the will could be admitted to probat here, upon the proofs contained in the process verbal of the court of probat of Louisiana, under the provisions of the statute of wills?
    
    
      
       Wiiis — Foreign Probate — Authentication.—The principal case is cited in foot-note to Wynn v. Harman, 5 Gratt. 167; Thrasher v. Ballard, 33 W. Va. 290, 10 S. E. Rep. 412: foot-note to Rice v. Jones, 4 Call 89. See monographic note on “Wills."
    
    
      
       1 Rev. Code, ch. 104, § 16, p. 378. “Authenticated copies of wills, proved according to the laws of any of the U. States, or of the countries without the limits of the same, and relative to any estate within this commonwealth, may be offered for probat in the general court; or, where the estate so devised shall lie altogether in one county or corporation, the superiour or inferiour court of such county or corporation, respectively, may admit to record any such authenticated copies: but the bond and oath of the executor &c. shall be changed from the bond and oath required by law in other cases, in such manner as to the said court shall seem necessary, and the proof to be made by the witnesses shall be conformed to the nature of the case. But such will shall be liable to be contested and controverted, in the same manner as the original might have been.” —Note in Original Edition.
    
   BROCKENBROUGH, J.

The first question is, whether this is an authenticated copy ? It is not authenticated according to the provisions of the act of congress. But, though that act prescribes a convenient method for the authentication of copies of wills proved in other states, and o'ffered for probat here, and this court has, in various instances, adjudged that copies of wills authenticated according thereto shall be admitted to record ; yet the court is unanimously of opinion, that the act of congress does not furnish the exclusive rule in such cases, and that a copy of a will authenticated according to the rules of the common law should be held duly authenticated. In the present case, the copy of the will has the seal of the judge of pro-bat ; and the governor of the state, under the seal of the state, has certified that he was the judge, and that full faith and credit is due to his signature as such. The seal of the court of a foreign country requires proof ; but the seal of the sovereign power of a nation proves itself, and gives authenticity to instruments certified under it. Therefore, this instrument is duly authenticated.

The next and most important question is, whether, under the statute of wills, an authenticated copy of a will, proved ^according to the laws of one of the United States, or of a foreign country, must, when produced and offered here for probat, still be proved by witnesses, in open court, or under a commission emanating from our court of probat, under the provision of the statute, that “the proof to be made by the witnesses shall be conformed to the nature of the case.” If this were a new question, doubts might be entertained concerning the proper construction of the statute ; and a difference of opinion has frequently manifested itself, and now exists in this court, on the subject. But that law, as it is now written, has existed for nearly forty-two years; and it is believed, there is not a single instance in which the testimony of witnesses in this court, or obtained by virtue of a dedi-mus potestatem issuing- hence, has been required, to admit any will to probat. In one instance, after admitting the will to pro-bat as a will of personal estate, the court did issue a commission to take the depositions of the subscribing witnesses ; but the commission has never been executed, and the will (Bacon’s will) has not been admitted as a will of real estate. It is, however, understood to be the settled construction of the statute, that when the authenticated copy is produced, if it shews that the will has been so proved in a foreign court, as that if proved in like manner by witnesses here, it could only be admitted as a will of personalty, it shall be so admitted here; but, if the evidence taken in the foreign court, be such that, if taken in this court, it would be sufficient to establish it as a will of lands, it shall be admitted to probat here also as a will of lands. It is not necessary to decide, whether, a certificate given by a foreign court (without spreading the evidence itself on the record) which shews that such was the evidence there, will be sufficient or not, for the admission of the will to probat here, as a will of lauds. In this ca.se, there is no doubt. This was an olograph will, proved as such by two witnesses in the court of pro-bat of Louisiana, and their evidence is set forth. Such evidence given here to prove an original will, would be amply sufficient to admit the will to probat, '"'generally : and while all of us are of opinion that this will should be admitted to probat as a will of personalty, a large majority are of ■opinion that it should be admitted to probat as a will of real estate also.

JUDGES UPSHUR, LOMAX, S. B. TAYLOR, and DUNCAN

dissented from so much of the opinion as declared the will properly proved as a will of lands, and therefore from the sentence admitting it to probat and record generally : these judges held, that it ought to be admitted to probat and record, as a will of personal estate only.

Sentence — That the copy of the will should be admitted to probat and record generally.  