
    Logan against Watt and others.
    
      Tuesday, June 7.
    
    The certificate of the register of wills, that a will of lands had been duly proved and approved "before him, and a copy thereof was annexed, is prima facie evidence of such will, though a copy of the probate is not set out.
    In Error.
    ERROR to the Court of Common Pleas of Columbia county, in ejectment.
    The defendants in error, the plaintiffs below, made title to the lands, for which this ejectment was brought, under Hugh Watt. They offered in evidence a writing, purporting to be a copy of the last will and testament of the said Hugh Watt, attested by three subscribing witnesses, annexed to a certificate under the hand and seal of the register of wills of Mifflin county, “ that on the day of the date hereof, at Lexoistown, before me, was proved and approved, the last will and testament of Hugh Watt, late of Greenxvood township, deceased, a true copy whereof, is to these presents annexed," and that letters testamentary had been granted. This evidence was objected to by the defendant, but was admitted by the Court: and their opinion was excepted to.
    
      Greenough and Hall, for the plaintiff in error,
    contended, that the will ought not to have been admitted in evidence without a copy of the probate. A copy of it, as made before the register, should have been produced, or witnesses examined in Court. The act of assembly of 1705, 1 Sm. I. 
      33, makes “ the copies of all wills and probates, good evidence to prove the gift or devise.’5 The register is not constituted the judge of what is a legal probate, so as to render his certificate to that effect evidence. The Court before whom the probate is offered, are to judge of it, which they cannot do without seeing it. Such probate, in case of land, is no more than prima facie evidence in this State. 1 Yeates, 99. Coates v. Hughes,
      
       and is subject to investigation. In England, it is not evidence at all as to real estate. Went. Off. Ex. 25.
    
      Hepburn, contra.
    This point does not appear any where to be decided. We only offered it as prima facie evidence. The register is a judge for the purpose of taking probate of a will; and his official certificate of such probate having been made, will be presumed correct, till the contrary is proved.
    
      
       3 Binn. 506.
    
   The opinion of the Court was delivered by

Duncan J.

The probate of a will of personal estate is final and conclusive. In England, it is not any evidence of a devise of-lands, because the ecclesiastical court or the ordinary, have no cognisance. The original will must be produced, and one at least of the subscribing witnesses, if alive, be called; and if he can prove the due execution by the testator in the presence of himself and the other witnesses, and their subscription in the presence of the testator, there will not, unless in case where the will is disputed, be any occasion to call the others. But where the will is disputed, the devisee should call all the subscribing witnesses. In Pennsylvania, the probate of a will devising lands, is prima facie evidence. The act of 1705, provides, that “the copies of all wills and probates, under the public seals of the courts or offices, where the same have been, or shall be taken, or granted respectively, other than copies or probates of such wills as appear to be annulled, disproved, or revoked, shall be adjudged, and deemed, and are thereby declared, and created to be, matter of record, and shall be good evidence to prove the gift or devise thereby made.55

If the register was a ministerial officer, as a recorder of deeds, the evidence of the proof or acknowledgment of the execution of the deed, should be set out, so as to enable the Court to judge, whether it conformed to the law, before the certified copy could be received in evidence; and such is the express requisition of the same act respecting the recording °f deeds. But the act of 1705, does not require that the evidence, should be' certified, but makes the act of the register, in admitting the will to be proved, matter of record, and that the copies or probates of the will so received, shall be good to pi'ove the gift or devise. The probate of a will does not mean the exhibition of the evidence, on which it is admitted to be recorded, but the sentence or decree of the register. It is a decision of a Judge from which an appeal lies to the Register’s Court. Act of 30th September, 1791. 3 Sm. L. 58. In construing an ancient act, the contemporaneous construction, and continued practice ought not to be rashly set aside, even though the Judges might entertain doubts of its propriety in the first instance ; and this especially in a case like this, where, if the will is admitted to pi-obate, where the proof does xiot conform to the law, the party to be affected is not prevented from shewing the non-conformity. The probate or sentence of the register, or the register’s court is but prima facie evidence in the devise of land. If the copy or probate offered in evidence shews, that the proof was made by one witness, or that a party having an interest' under the will, was received as one of the two witnesses required by law, this proves of itself the non-conformity ; or the party to be affected by it may px-oduce the copy of the register’s record, and shew, that the will was unduly admitted of record, and the heir-at-law has a right to call qn the subscribing witnesses. I speak now of a will of lands; for the probate would be conclusive evidence, in a controversy respecting personal estate,, and such exemplification of wills, certified generally to have been proved, approved, and registered, in the prerogative court of Canterbury, under the seal of that Court, so early as 1759, was received in evidence, on debate in ejectment. Lessee of Weston v. Stammers, 1 Dall. 2, and though the proof on which the will was admitted to be registered would seem to be more explicitly required to appear in the exemplification, than when probate was granted in this State. And in Morris’s lessee v. Vanderen, 1 Dall. 66, the plaintiff produced a probate from the same' Court. Objection was not made, on the ground that the proof was not set out, but because the probate was not recorded; but it was answered, that the act of 170S, made the probate evidence, and the Court allowed it to be received in evidence. And at a Circuit Court, at Somerset, October, 1806, before the present Chief Justice, Lessee of Woodruff executor of Hoopes v. Rosendaer, a copy of the will of Robert L. Hoopes, certified under office seal by the register of the prerogative office of New Jersey, to have been proved in the usual form by two of the subscribing witnesses, but the probate was not set forth at large, was received in evidence, on the authority of Weston’s lessee v. Stammers. Such has been the course of decision under this act; and I cannot say there is any thing so repugnant to any principle of natural justice, as to compel the Court now to say all this was wrong, and to require, that the evidence before the register should be set out in the exemplification, in order to entitle the party to give the probate in evidence. And indeed it would seem to fall within the wise maxim of the law, that all acts of an officer, having authority, shall be presumed to be solemnly and duly done, unless the contrary appear on the face of the act, or is proved by evidence aliunde.

Judgment affirmed.  