
    The Inhabitants of Dublin versus Sarah Chadbourn.
    The probate of a will is conclusive with regard to lands devised, as it is with -egard to chattels.
    So is the filing and recording of a will made in another state or country by stat. 1785, c. 12.
    hi no case can the due execution of a will, the sanity of the testator, the attestation of the witnesses, or any question of that kind, be tried in the courts of common law, in this commonwealth.
    This was entry sur disseisin, and was submitted to the detei mi-nation of the Court upon a case agreed by the parties.
    
      Edward Sprague, late of Dublin, in the state of New Hampshire, deceased, was seised of the demanded premises in fee, and by his last will devised the same to his wife for life, with remainder to the demandants, “ for the use of * schooling [ * 434 ] in said Dublin.” The said will was duly proved in the Probate Court in the county of Hillsborough in the state of New Hampshire, and the decree of the judge being appealed from by one of the heirs of the said Edward, the same was affirmed in the Supreme Court of Probate of that state. After which the executor, named in said will, produced a copy thereof, with a copy of the probate thereof, to the judge of probate for this county, pursuant to the statute of .1785, c. 12, and petitioned the judge that the same might be filed and recorded in the probate office here; and, after such notice and proceedings as the statute requires, the said judge made his decree, pursuant to which the same were so filed and recorded. The testator’s widow survived him, and is since deceased.
    It was agreed (if the fact might legally be shown in evidence to the jury on a trial of the action upon the general,issue) that the subscribing witnesses to the will were all of them inhabitants of Dublin, and liable to be taxed for the support of schools in that town. In every other respect, the said will was made, subscribed and attested in the manner the laws of this commonwealth require.
    Judgment was to be rendered upon the default of the tenant, oi the nonsuit of the demandants, as the opinion of the Court should be upon the facts agreed.
    
      Metcalf, for the tenant.
    The first point which the tenant would suggest, is, “ that the title to real property, and the disposition of it, must be regulated by the law of the place where it is situated” . The will, therefore, under which the demandants claim, is not sufficient to pass the estate in question, unless it was attested according 'o the law of this commonwealth.
    
      The tenant, in the second place, says that the case shows that the will of Mr. Sprague was not attested as the laws of this commonwealth require, and that the lands, demanded in this suit, descended to his heirs.
    The demandants object that the facts, which establish this [ * 435 ] point, are not admissible in evidence. The tenant * sup poses that this objection rests on the statute of 1785, c. ] 2, applied to the other facts agreed. If, however, the tenant could object to the validity of the will, on a trial of the issue joined upon the plea of nul disseisin, she may now contest it.
    Upon the plea of nul disseisin, it is understood that the title, and the title only, is in question. To prove the issue joined on this plea, it is believed the tenant might show the following facts: that the heirs of Mr. Sprague entered into the demanded premises soon after his death ; that they demised the premises to the tenant, and that she now holds under them; that the said heirs had no notice of the application to the judge of probate in this county for the filing and recording of the will in his court; that the demand-ants’ entry was after the demise to the tenant by the heirs; and that she has been in possession of the demanded premises for twenty years last past, claiming under the devisor during his life, and under his heirs since his death. And in order to contest the validity oi the will, she might show, if such were the truth, that the order or decree of the Probate Court, directing the will to be filed and recorded, was obtained by fraud  ; after which she might show that the witnesses were incompetent, and the will void.
    There is, then, clearly one ground on which the tenant might be admitted to contest the validity of the will, and to show, under the issue of nul disseisin, that it was not attested by three credible witnesses. And according to the agreement of the parties, if this could, be done under that issue, the tenant is now at liberty to discuss the competency of the attesting witnesses.
    This view of the case, however, proceeds on an admission that, under other circumstances, the tenant would not be allowed to show the incompetency of the witnesses; that the filing and recording ot the will in the Probate Court in this county is conclu- [ * 436 ] sive evidence against the * heirs and against the tenant. This admission the tenant does not make, except for argument.
    Though, in England, the probate of a will devising real property is not evidence of the contents or validity thereof—as the spiritual court has no power to authenticate such a devise, so far as it relates to land—yet it may be otherwise in this commonwealth, in cases ol wills of our own citizens, and when such wills are to be proved and allowed originally by our own courts of probate. However this may be, it is contended by the tenant that the act before referred to “ for the filing and recording of wills proved without this government ” has expressly made a different provision; It is difficult to discern the reason or operation of the fourth section of that act, unless the tenant’s construction prevails. It is thus: “ Nothing in this act shall be construed to make valid any will or codicil that is not attested and subscribed in the manner the laws of this commonwealth direct, nor to give operation and effect to the will of an alien, different from that which such will would have had before the passing of this act.” Nothing in this act; not even the provision in the 1st section, that “the filing and recording shall be of the same force and. effect as the filing and recording of an original will proved and allowed in the same court,” shall give validity to a will not attested and subscribed according to the requirements of the laws of Massachusetts. But a will not thus attested, and the will of an alien, though proved in another state, shall be void, notwithstanding it may have been filed and recorded here. This is the tenant’s construction of the fourth section of this statute; and there are obvious reasons for such a distinction between the effect of the regular probate of a domestic will, and the filing and recording of a foreign one. If the construction of this section were doubtful, the argument ab inconvenienii might be forcibly urged. But it is apprehended that the inconveniences and mischiefs of the demand-ants’ construction were clear y before the * legislature, [ * 437 J and that a view of those inconveniences and mischiefs induced the addition of the section in question, for the purpose of forever excluding them. The section seems to be nugatory, except upon the tenant’s construction; for the law would have been the same, if it had been omitted, or if it should hereafter be repealed. There is nothing in the preceding sections, which, by the most remote implication, can impugn the doctrine of the common law, as stated in the first point which the tenant has suggested. It is impossible to conceive that any thing in the act should be construed to make valid any will not executed according to the laws of this state.
    Among the obvious reasons for the distinction above alluded to between the effect of the probate of domestic and foreign wills, are the distance of parties adversely interested, the improbability of actúa, notice, and the power of the foreign executor to offer the will to be filed and recorded at such time as he pleases; and, if there be effects in various counties, in such county as he pleases.
    The statute, therefore, would seem to have given authority to an executor to dispose of the effects of a foreign testator, and the devisee to enter and hold till a rightful claimant shall appear and contest the title in a suit at law. The filing and recording of the v ill is evidence, but not conclusive. The devisee would seem to have the same title as a tenant, to whom an assignment had been made under our statute process of partition. He has the right of' possession, till a better title is proved.
    The evidence afforded by the filing and recording of the will may, for the reasons above suggested, be analogous to that of a sentence in a cause of jactitation, i. e., admissible, but not conclusive against a marriage. The sentence has only a negative and qualified effect, viz. that, as far as yet appears, the libellant is free from all matrimonial contract, leaving it open to new proofs of the same marriage in the same cause, or other proofs of the same [ * 438 ] or another marriage in another cause. The case * at bar shows that there was no appearance against the filing of the will in question, and does not show that the heirs, one of whom the papers before the judge of probate prove to have been in the immediate vicinity, and to whom personal notice might have most easily been given, had any actual notice of the application. Under these circumstances, the heirs at law would seem equitably entitled to a hearing upon the validity of the will, as no loches is imputable to them. And as this is a question between the heirs and the devisees, the Court will not be inclined, unless obliged by inflexible roles o law, to estop the former to make one effort to save the little remnant of a large estate from the operation of a will, which they religiously believe to have been obtained by fraud, and not executed according to our law.
    The Court will observe that, although the tenant does not appear, by the facts agreed, to claim under the heirs, yet the demandants have agreed that if the will was not duly attested, she is to have judgment.
    The record of the probate courts in New Hampshire shows that the will was attested according to the law of that state, and, ol course, that it passes the real property there situate.
    Are the subscribing witnesses credible according to the law of this commonwealth ?
    The property is given to the inhabitants of Dublin for the support of schools, which the towns in New Hampshire are, by law, obliged to maintain. The witnesses who attested the execution of the will were, at the time of attestation, inhabitants of the town, to whose use the devise was made, and were ratable for the support ot schools which the property was devised to support.
    At common law the witnesses to this will were incompetent 3 Burr. 1856. —Peake’s Evid. 161. —Phillips’s Evid. 50. —Powell on Dev. 130, Doe vs. Kersey, where the interest of the attesting witness was very trifling. That the witnesses are incompetent at common law is still further * proved by [ * 439 ] the Eiglish statutes making corporators and inhabitants of parishes, &c., witnesses. Also by our own statute of 1792, cap. 32.
    Has this statute rendered the inhabitants of towns, districts and parishes competent attesting witnesses to a will which contains a devise to such town, district or parish ?
    In the first place, the tenant contends that this statute applies only to towns, &c., within this commonwealth : secondly, that it is confined to testimony given “ in suits at law,” strictly so called: and lastly, that it cannot be extended so as to repeal the statute of 178.3, c. 24, *§> 2, which requires all devises of land to be attested and subscribed in the presence of the devisor by three or more credible witnesses.
    This statute, by which certain corporators are rendered campe tent to testify, notwithstanding their interest in the event of the suit, is to be expounded like other statutes; for the exposition of which, Lord Coke says, it is necessary to understand and consider what the mischief was for which the common law had not provided. The mischief in this instance was, that in suits at. law wherein towns, &c., were parties, the persons, who were best acquainted with the facts, and perhaps who alone were acquainted with them, were incompetent to testify. This mischief extended to all suits for the support of paupers, and other suits in which towns are usually engaged ; but not to the probate of wills in which towns are devisees. The transactions which relate to suits in general, happen within the town concerned, and a rejection of the inhabitants was tantamount, in many cases, to a failure of justice. This reason does not apply to the case of a will. Disinterested witnesses can always be called.
    The remedy, therefore, should not be extended further than the mischief was felt.
    Besides, courts never adjudge that a statute is repealed by implication, unless that implication is necessary and * un- [ * 440 ] avoidable. If the statute prescribing the manner in which wills of land shall be executed, is repealed by the statute for admitting inhabitants of towns, &c., to be witnesses, it is by a very unnecessary and remote implication. The witnesses who attest a will have, by the act of attestation, done all that the law requires, if they die before the will is proved, evidence o; their having attested is prim facie sufficient to authenticate it. They have effected the purposes of the law, without confirming their attestation by testimany under oath. With what plausibility, then, can it be contended that a statute, which authorizes corporators to testify in court repeals another statute which forbids them to attest ? Their attestation in the one case would not enable them to testify ; nor would their competency to testify in the other case authorize them to attest.
    If the statute of 1792 has repealed that of 1783, it had an impolitic and unjust retrospective operation; and also infringed an established and important rule in relation to attesting witnesses. Witnesses to a will must be competent at the time of attestation. Competency subsequently acquired will not give validity to a will attested by them. But this rule is overthrown by the statute of 1792, if the former statute is'thereby repealed ; and heirs might be disinherited by the magic of an act, which w^s designed chiefly to regulate the trial of pauper causes.
    Nothing will be added to these remarks, except an allusion to the importance of disinterested attesting witnesses to a devise, and the solicitude of parliament and our legislature on that subject from the time of Charles II. to the present hour. The Court are respectfully referred to Lord Camden’s remarks on this topic, in the case of Doe, ex dem. Kindson, vs. Kersey, as stated at large in the first volume oi Day’s Reports.
    
      Hilliard,, for the demandants.
    March term, 1821, at Concord, the opinion of the Court was de livered by
    
      
       3 Mass. Rep. 518, by Parsons, C. J. —2 P. Will. 293, Coppin vs. Coppin.
      
    
    
      
       3 Co. 78. Fermor’s case. —11 State Trials, 262.
    
   * Jackson, J.

. By our laws, the probate of a will is conclusive with regard to lands devised, in the same manner as it is with regard to chattels. If, therefore, this will had been originally proved and allowed in a probate court in this commonwealth, its validity could not afterwards have been questioned in a suit at law between the heir and devisee.

When a will is originally proved and allowed in any other state or country, according to the laws of such country, the filing and recording of a copy in our Probate Court, in the manner prescribed by the statute, is of the same force and effect, as if the original had been proved and allowed here. If may be added, that a will purporting to dispose of both real and personal estate, and not so attested and subscribed as to pass real estate, cannot, by our laws, be allowed as a testament of personal estate only. This short view of the case seems conclusive in favor of the demandants.

It is true, the same statute provides that nothing therein coniain ed shall be construed to make valid any will, that is not attested and subscribed in the manner directed by our laws; and it was contended that the will in question was not so attested and subscribed.

This objection, if well founded, ought to have been shown in the Probate Court, and would have been sufficient to prevent the filing and recording of the will. The statute prescribes the notice to be given by the judge of probate, and the time allowed for all persons interested to appear and show cause against the allowance of the will; and these requisitions were complied with in the present case. It seems very clearly the intent of the statute that this, and every other objection to the validity of the will, should be heard and determined in the course of that proceeding in the Probate Court. This is in accordance with the whole tenor and system of our laws on this subject. * There is no case in our [ * 442 ] jurisprudence in which the due execution of a will, the sanity of the testator, the attestation of the witnesses, or any question of that kind, can be tried in a court of common law. A will without the probate is of no avail; with the probate it is conclusive, in any action at common law, in which the question of a devise may arise.

In the present case, we have the best authority for believing that the witnesses were competent in New Hampshire, because the will has been proved and allowed in the highest court of law in that jtate. From the report of that case in Adams’s New Hampshire Reports, 273, Eustis vs. Parker, it appears that persons having no other interest, but as inhabitants of a public corporation, such as a town, county, &.C., are competent witnesses in any case, in which such corporation is a party. It seems that, by the laws of that state, the witnesses were not considered as having any personal interest in the property of the corporation; and their liability to be taxed, with the chance of diminishing the amount of their taxes, was not such an interest as to render them incompetent. As their supposed interest arises wholly under the laws of New Hampshire, depending on their rights and their liabilities as members of a corporation in that state, it might, perhaps, be said that the nature and effect of that interest ought also to be judged of according to their laws. But it is not necessary for us to consider that point, nor to determine whether the witnesses would have been competent in the Probate Court in this state. If the heirs had appealed from the decree of that court, it would have brought this question before us, as the Supreme Court of Probate. But the present action depends, not on the validity of the will, in the sense in which those words are used in the statute before referred to, but on the sufficiency of the probate. If it could be shown that the probate was a mere nullity, it would undoubtedly be fatal to the title of the devisees; but as the judge of [ * 443 ] probate proceeded regularly, *in the matter within his jurisdiction, his decree is conclusive in their favor.

Tenant defaulted. 
      
       The chief justice, being related to one of the parties in interest, did not sir in tnis cause.
     