
    Richmond.
    Parker’s ex'ors v. Brown’s ex'ors & als.
    
    1850. January Term.
    
    (Absent Cabell, P.)
    A will which disposes of both real and personal estate, is attested by but one witness; and on proof by that witness is admitted to probat generally: and no suit is brought within seven years to set aside the will. Held : That after seven years from the probat, it is a valid will of lands, as well as of personal estate.
    
      Mrs. Sally Parker of Frederick county, died in 1821. Her will was dated the 2d of February 1821, and was attested by but one witness, but it was admitted to pro-bat in the following terms:
    At a Court held for Frederick county, the 5th of November 1821, this last will and testament of Sally Parker deceased, was proved by the oath of John B. Weldon, witness thereto, and ordered to be recorded.
    By the Court.
    
      Ja. Keith, C. F- C.
    
    At the December term of the Court, Hierome L. Opie qualified as administrator with the will annexed. And at the April term 1822, the record of the Court states, “ this last will and testament of Sally Parker deceased, was produced in Court, and Dr. Samuel Taylor being first affirmed, declared that he read the said will to the said Sally Parker, at her request, the day preceding her death; that she declared it to be her will, written by her brother Hierome L. Opie, and signed by herself.”
    
      Mrs. Parker, by her will, devised and bequeathed as follows:
    “ I give to Richard E. Parker that half of my farm on which the dwelling stands, called the Retreat, the same to be divided according to valuation, to him and his heirs forever. Also I give the said Richard the following slaves, to wit: Big Janey, her children and grandchildren, General and Joe, to him and his heirs n forever; provided he pays out of this property the following legacies, viz: To Betsy Parker, daughter of John Parker deceased, five hundred dollars; to Harriet, daughter of Alexander Parker, five hundred dollars; to Foxall Parker five hundred dollars; to Richard and James Parker, sons of John, five hundred dollars each : and provided further, that he pay to his brother John, during his life, the sum of fifty dollars per year.”
    The testatrix made H. L. Opie her residuary devisee and legatee, and directed him to pay certain legacies. And she then said, “ It is my express will and desire, the negroes hereby willed shall not be sold by the persons to whom bequeathed ; but that they shall be kept together according to this arrangement. It is further my wish, that a period of one and two years from my death shall be given the said Parker and H. L. Opie, if required, to pay the moneyed legacies heretofore named by me.”
    At the death of Mrs. Parker, the one half of the land called Retreat was estimated to be worth 4500 dollars, and the slaves bequeathed to Richard E. Parker were estimated at 2200 dollars. Richard E. Parker took possession of both the land and slaves; but he seems to have considered that the will of Mrs. Parker was not effectual to pass the land, and therefore to have purchased the interests of many, if not all the heirs of Mrs. Parker, in this land.
    In 1824 or '25, a bill was filed by certain parties claiming under the will of Thomas Parker, the husband of Mrs. Sally Parker, seeking to recover from Richard, E. Parker and H. L. Opie, the land devised to them by Mrs. Parker. Thomas Parker had by his will devised the residue of his estate, which included this land, to Airs. Parker, “ not only for her life, but to be disposed of either by will or deed, provided she thought proper to do so.” But if she failed to dispose of it, then over. Parker and Opie answered this bill, and insisted that the devise to Mrs. Parker, with a general power of disposition, gave her the fee, and the limitation over was void. And they insisted further, that if this was not so, that Mrs. Parker had exercised her power of appointment; and that her will was effectual to pass the estate either as a devise, or as an execution of the power. In this case the bill was dismissed in 1828, without any statement in the decree, of the grounds of dismissal.
    In 1826, Richard T. Brown, as assignee of the legacy to Betsy Parker, and two other of said legatees, instituted a suit in the Chancery court at Richmond, against Richard B. Parker and the other legatees, to recover their legacies. Parker, in his answer said, that if the will of Mrs. Parker, proved as it had been, passed to him the land and slaves therein bequeathed and devised to him, he was and always had been ready to pay the legacies charged upon the property. But if the will did not pass the real estate as well as the personal, he insisted that he was either not liable to pay the legacies, or that they ought to abate in the same proportion that the real bore to the personal property; as it was the manifest intent of the testatrix that the legacies should be paid in consideration of his receiving the whole property. He referred to the suit brought by the parties claiming under the will of Thomas Parker, among whom were some of the present plaintiffs, and he insisted that if they claimed the legacies under the will of Mrs. Parker, they should release their claim to the land under the will of Thomas Parker.
    
    The cause seems to have been delayed for years, because of claims set up against the estate of Thomas Parker, which if established, it was supposed might require the whole property for their satisfaction. It was revived in 1841, in the name of the executors of Brown, and of the executors of Parker, when commissioner Poitiaux reported, under an order of the Court, the amount due upon the legacies; and that there was no longer any difficulties arising out of claims against the estate of Thomas Parker ; and also that the defendants admitted that the slaves were adequate to the payment of the amount due upon the legacies.
    In 1843, the plaintiffs filed a supplemental bill, in which, after referring to the previous proceedings in the cause, they charge that the will of Mrs. Parker, was in November 1821, admitted to probat generally, on the proof of the subscribing witness, and that in April 1822, it was proved by another witness. That no appeal was ever taken from the sentence of the Court admitting the will to probat, or from the order of the Court receiving additional proof as aforesaid. That no suit was ever brought to set aside the will, or to impeach its validity as a will of real and personal estate, except the suit hereinbefore mentioned, which had been dismissed in 1828, and no appeal had been taken from that decree. That therefore the will must then be taken as a good will of lands as well as personal estate, so that there was no foundation either in fact or law for the claim of Richard E. Parker for an abatement of the legacies which he was directed to pay.
    The executors of Richard E. Parker answered this bill. They state the mode of execution and of probat of the will, and insist that the charge of the legacies was upon both the real and personal estate, and that the right of the plaintiffs to recover, depends upon the question whether Richard E. Parker acquired a good title to the land by the devise in Mrs. Parker's will. They insist he did not, because the will having been attested by only one witness, it was a will of personalty only, and could not be made a will of realty by any order of Court; and because in fact, the order of Court admitting the will to probat, shews that it was only intended to admit it to probat as a will of personalty. They do not admit that the decree in the suit brought by the claimants under the will of Thomas Parker, established the will of Mrs. Parker as a valid will of land; but say that they have been informed that it was decided on wholly different grounds. And though it is true that no other suit had been brought to impeach Mrs. Parker's will, the reason was that Richard E. Parker never stood upon that will as to the land, but admitted its want of validity, and purchased the interests of the other heirs.
    The cause came on to be finally heard in June 1843, in the Superior court of chancery for the Richmond circuit, when the following decree was made :
    
      “ In relation to the defence set up by Richard E. Parker and his executors, the Court is of opinion, that the said Parker, upon the evidence in the cause, including his own admission, must be considered as having elected to take under the will of Mrs. Rally Parked', the property, real and personal, devised and bequeathed to him by that will; and is also of opinion that the claim of the said Richard E. Parker to an abatement of the legacies he was required to pay by the said will, on account of the alleged failure of the devise to him of the real estate, cannot be sustained. For it appears that the will of Mrs. Parker, was on the 5th day of November, one thousand eight hundred and twenty-one, by the County court of Frederick, admitted to probat generally, as her last will and testament; that no appeal from that sentence of probat was taken; that no suit in chancery was ever brought to disturb the will as a good will of real or of personal estate, except the suit referred to in the said Richard E. Parker's answer, copies of certain proceedings in which are filed by his executors in this cause, which suit resulted in a decree made in the year one thousand eight hundred and twenty-eight, dismissing the plaintiff’s bill, and that decree has never been appealed from. Upon these facts, the Court is of opinion, that the probat of the will operated to give it effect as a will of lands; and that its validity as a well executed and well proved will of real estate, cannot now he impeached. It is therefore not necessary, and not competent for this Court to decide in this cause, whether the said will was originally well executed or well proved or not. It is likewise unnecessary for the Court to consider whether, if the devise of the real estate had failed, the legacies charged upon the devisee Richard E. Parker, must therefore abate. Nor is it any just ground for an abatement of the legacies, that the said Richard E. Parker, without waiting for an eviction, may have chosen voluntarily to fortify his title to the land devised to him by purchasing the claims of certain adverse claimants; and it is therefore unnecessary by an account or otherwise, to ascertain the sums which the said Richard E. Parker may have paid in buying in the claims of certain of the heirs at law of Mrs. Sally Parker to the said land. The Court is therefore of opinion, that the plaintiffs are entitled to recover against the executors of the said Richard E. Parker, the amount reported due to them by commissioner Poitiaux, on account of the said legacies, and interest.
    “ The Court doth therefore adjudge, order and decree, that the defendants, Charles McCormick and Richard Parker, executors of Richard E. Parker deceased, out of the assets of their testator in their hands to be administered, do pay to the plaintiffs Richard L. Beale and Thomas Brown, executors of Richard T. Brown deceased, the sum of nine hundred and thirty-five dollars and sixty-seven cents, with interest on four hundred and fifty dollars, part thereof, to be computed at the rate of six per centum per annum, from the thirty-first day of October, one thousand eight hundred and forty-one, until paid. Also, to the plaintiff Harriet Parker, the sum of one thousand and thirty-nine dollars and seventy-two cents, with like interest on five hundred dollurs, part thereof, from the same time, until paid. Also, to the plaintiff David Greenlaw, administrator with the will annexed, of Osmond Johnson deceased, the sum of one thousand and thirty-nine dollars and seventy-two cents, with like interest on five hundred dollars, part thereof, from the same time, until paid. And do also pay to the plaintiffs their costs by them about their suit in this behalf expended.
    
      “ And as it is alleged by the said Richard E. Parker, in his answer, that the plaintiff Harriet Parker, and James and Betsy Parker, the assignors of the legacies claimed by the other plaintiffs, are the nephew and nieces of Gen. Thomas Parker, and that they claim the land devised to the said Richard E. Parker by Mrs. Sally Parker’s will, upon the ground that the devise or appointment thereof made by Mrs. Sally Parker’s will is not valid, and it is insisted by the same answer, that if the legacies are claimed, the claim to the land should be released: Therefore, with the consent of the plaintiffs, by their counsel, it is adjudged, ordered and decreed, that James Lyons and George N. Johnson, who are hereby specially appointed commissioners for that purpose, shall by sufficient deed, executed by them in the name and on behalf of the plaintiff Harriet Parker, and the defendants John H. Peake and Betsy his wife, and James Parker, release to the heirs or devisees of the said Richard E. Parker deceased, all the right, title, interest, claim and demand of the said Harriet Parker, John H. Peake and Betsy his wife, and James Parker, in and to the real estate devised as aforesaid by Mrs. Sally Parker to the said Richard E. Parker, such release to be made at the costs of the'parties for whose benefit it is to be made. And in case this decree should prove ineffectual, wholly or in part, liberty is reserved to the parties in whose favour the same is made respectively, to resort to this Court for such further decree or order as may be necessary or proper to give effect to this decree.”
    From this decree the executors of Richard E. Parker applied to this Court for an appeal, which was allowed.
    The case was submitted on printed arguments, by Lyons for the appellants, and Cooke for the appellees.
    
      Cooke.
    
    The comment of the appellants, in their petition, on the opinion of the Court below, is as follows :
    “ By this decree, your petitioners feel much aggrieved, and they are advised the same is erroneous, and ought to be reversed, because the will of Mrs. Parker never was admitted to probat as a will of lands. To constitute a good will of lands, there must be two attesting witnesses. Here there was only one to sustain this will as a will of lands; therefore, it is necessary to invoke the principle said to have been established by this, as well as other Courts ; that when a will of personalty is improperly admitted to probat as a will of lands, and there be no appeal from the sentence or bill to impeach the will within seven years, it must forever stand as a good will of lands, and that a probat in general terms, is a probat as a will of lands.
    “Your petitioners submit that no such principle has ever been established by this or any other Court, where the sentence was general, and the fact appeared in the sentence that the will was in fact executed only as a will of personals.
    “ The cases on this point are cited in the case of Street’s heirs v. Street, 11 Leigh 498, and it is submitted that they establish no such principle; but only establish that when the sentence is general, without itself disclosing the defect in the will, that sentence shall be respected as the judgment of a competent Court, until it is reversed; because, as it was the duty of the Court to have proper proof before it, and the sentence is correct only on the supposition that proper proof was before it, every thing shall be intended in favour of the sentence, or if the Court expressly declare it to be a will of lands, it shall stand as such until revoked or reversed ; because, in that case, the Court being authorized to decide the precise question, and having decided it, its judgment, though erroneous, must stand until corrected in the mode pointed out by law,” &c. &c.
    Here then is the proposition which the appellants undertake to maintain; that where the defect in the will appears in the sentence of the Court of probat, neither the probat, though general, nor the lapse of seven years, without bill filed to call its validity in question, nor both together, will make it a good will to pass lands. “ The cases on this subject (say the appellants) are cited in the case of Street v. Street, 11 Leigh 498.” The cases cited by counsel in 11 Leigh, above referred to, are Bagwell v. Elliott, 2 Rand. 190: West v. West’s ex’ors, 3 Rand. 373; Nalle v. Fenwick, 4 Rand. 585; and Vaughan v. Green, 1 Leigh 287.
    Passing over the two first named cases, in which the general doctrine of the validity of wills, though defective, after seven years have elapsed from the probat, is repeatedly touched on by the Judges in their dicta, let us examine the case of Nalle v. Fenwick.
    
    “ The probat of a will cannot be called in question, after the lapse of seven years, and no person appearing within that time to contest it.”—Reporter’s Syllabus.
    
    
      Fenwick, a plaintiff in chancery, and a creditor of Edward Rice deceased, was called on by the nature of his case to shew that Rice’s title to land in Culpeper was good under a will made by Savage many years before, and which had been admitted to probat in the General court, on evidence of doubtful character as to sufficiency.
    The entry on the records of the General court was this: “ That Cosmo Medici, a witness to the will, proved it according to law; and that he also deposed that Routhack and John Routhack, the two other witnesses to the same, subscribed their names thereto, at the request and in the presence of the said William Savage; and it appearing to this Court that every legal means have been taken by the said Edward Rice to procure the attendance, at this Court, of the said Routhack and John Routhack, who are out of this State, to testify concerning the said will, and they not appearing, therefore it is ordered that the said writing be recorded, as and for the last will and testament of the said William Savage, on the evidence of the said Cosmo Mediate
    
    The question whether the will was so proved as to pass lands, was one of the principal questions in the case.
    Judge Carr, whose opinion was concurred in by the other Judges, says, p. 588:
    “ By the statute of 1785 it is enacted, ‘ that where any will shall be exhibited to be proved, the Court having jurisdiction, may proceed immediately to receive probat. If any person shall, within seven years, appear, and by his bill contest the validity of the will, an issue shall be made up whether the writing be the will of the testator, &c. ; but, no such party appearing within that time, the probat shall be forever binding.’
    “ On the 19th June 1789, the will in the case before us was admitted by the Geueral court to full probat ' as and for the last will and testament of the said William Savage.’ This suit was not commenced until the 2d December 1799, upwards of ten years after the probat. Can we now call in question the probat of this will, or disturb it in any way ? The law says not. It says that no party appearing within seven years to contest the will, ‘ the probat shall be forever binding;’ and so say the decisions of this Court. Bagwell v. Elliott, 2 Rand. 190; West v. West’s ex’ors, 3 Rand. 373.”
    It is true that Judge Carr goes on to intimate that the mode of probat, in this case was, perhaps, correct and legal. But in the same breath he declares that the Court cannot, at this day, judicially look into that question. “But if the time had not elapsed, (he says,) and we were free to question this probat, I should strongly incline to the opinion that the General court did right in receiving it.”
    The amount of the case then, is, that on the concession that the sentence of the Court of probat was originally erroneous, on its face, the will, after the lapse of seven years, was a good will to pass lands. And this is the very converse of the doctrine of the petition.
    Let us examine the case of Vaughan v. Green.
    
    
      “ Will disposing of real and personal estate, but not duly executed as to the real, was admitted to probat by the County court, in general terms, in 1785, and never contested: held, this was full probat,” &c.—Reporter’s Syllabus.
    
    
      “ This paper,” says the first bill of exceptions, p. 287, “ was dated January 2, 1785, and though it appeared not to have been duly executed as a will of lands, the County court of Halifax, at September term 1785, stating that it was exhibited in Court as the will of Boyd, and proved by the oaths of two witnesses, admitted it to probat in general terms, recorded it, and granted administration, with the will annexed, to the testator’s widow.”
    By reference to the record of the ease, in this Court, it will be seen that the paper, offered as a will, was an incomplete draft of a will, stopping abruptly in the middle of a sentence, in which the testator seems to have begun a clause making provision for a posthumous child. The testator’s name is not signed to it, nor are there any subscribing witnesses, as the sentence of probat shews.
    
      Carr, J., whose opinion was concurred in by the other Judges, says, p. 293:
    “ The proper Court of probat, in 1785, admitted the paper purporting to be the will of William Boyd, to full probat, had it recorded, and granted administration under it. There has never been any bill filed, or attempt made in any other form, to impeach it. And in 1823, thirty-eight years after the probat, it is objected that this will shall not be introduced in evidence, in a contest about the lands held under it. I do not think that this objection can be sustained on any ground. In Bagwell v. Elliott, 2 Rand. 190; West v. West, 3 Rand. 373; and Nalle v. Fenwick, 4 Rand. 585, this Court decided that a will admitted to probat by the proper Court, could only be contested by bill; and that no party appearing within seven years to contest the will, the probat shall be forever binding.”
    Now, it is conceded that the whole extent of this will’s defectiveness does not appear on the face of the sentence of probat, namely, that it was an unfinished paper, stopping abruptly in the middle of a sentence, and of a devising clause, and that it was not signed by the supposed testator. But it does appear by fair inference, on the face of the sentence, as recited in the first bill of exceptions, that there were no subscribing witnesses : and such was the fact.
    This case, then, as well as Nalle v. Fenwick, is in the teeth of the doctrine asserted in the petition.
    Let us now examine the last of the cases referred to in the petition, viz : the case of Street’s heirs v. Street.
    
    
      John Street, the elder, died in 1801, having first made a will, which was admitted to probat soon after. The bill in this case, relying on the will as a good will to pass lands, was filed in 1819, the validity of the will never having been questioned up to that time.
    The character of the paper and the mode of probat, appear in 11 Leigh 499.
    “And the will being offered by the executors, for probat, in the County court of Hanover, in March 1801, it appeared by the sentence of probat, that ' the said will, having no subscribing witnesses thereto, three of the sitting members of the Court were sworn and examined, and thereupon declared that the signature of John Street, subscribed at the foot of the said will, was, from their acquaintance with the handwriting of the said John Street, to their full belief, written with the proper hand of the said John Street f and the same was thereupon ordered to be recorded.” So far the sentence of the Court of probat.
    But the reporter adds: “ It appeared by the evidence in this cause, that, in fact, the body of the will was not wholly written by the testator, but was written for him by his son, Parke Street; so that the will, though admitted to full probat, in general terms, was not duly executed as a will of real estate.”
    Now it is submitted that it appears, on the face of the sentence of probat, by irresistible inference, that the signature only, and not the whole body of the will, was the handwriting of the testator; and it is expressly recited that there were no subscribing witnesses. So that the defectiveness of the will, as a will to pass lands, appeared on the face of the sentence.
    And, accordingly, Messrs. Lyons and Johnson, counsel for the appellants in that case, “ made the point that the will of John Street the elder, which was not attested by any witnesses, and of which only the signature, not the whole will, was proved to be in the testator’s handwriting, was not effectual to pass or charge his real estate. The sentence of the County court, admitting the will to full probat upon such defective proof, and the defect of proof appearing in the sentence itself, could not make it, what by law it manifestly was not, a good will of real estate,” &c. p. 505.
    But Messrs. Daniel and Leigh, the counsel for the appellees, replied, (p. 506.) “ That it was quite too late, now, to raise the question whether the will of John Street the elder, was a good will of lands. The will had been admitted to full probat, as early as 1801; and according to our laws, the sentence of probat, however erroneous in fact, could not be contested after the lapse of seven years. Bagwell v. Elliott, 2 Rand. 190; West v. West’s ex’ors, 3 Rand. 373, 378-9, 386 ; Nalle v. Fenwick, 4 Rand. 585, 588-9; Vaughan v. Green, 1 Leigh 287.”
    The will was sustained as a will to pass lands.
    Judge Tucker, in the only opinion given, (p. 510,) says: “The will of John Street the elder, by its terms, charges that portion of his [real] estate which he derived from his son John the younger, with the debts of his son; and if the will be executed so as to pass or charge real estate, this will must have that effect. But the will is not attested by any witnesses, and in the sentence of probat there appears no proof that it was wholly written in the testator’s hand. It was, however, ordered to be recorded in general terms, and not merely as a will of personalty. In this state of things, it would seem that we must, according to the decisions of this Court, cited at the bar, take it to be a good will to charge the realty. To this course of decisions, I feel myself bound to defer, where, as in this case, it is possible, evidence may have been given of the whole will being in the testator’s handwriting. This, though it be not true, [for the evidence in the case proved that it was written by the testator’s son, Parke Street,] we may be bound to presume to be true. If, however, a case were to occur, where, upon its face, the will could not pass real estate, as if it were not signed at all, I should much incline to consider the order to record it, however general, as properly to be interpreted in the more restricted sense of declaring it a good will of personalty only.”
    I have presented the whole of Judge Tucker's opinion, including his speculative dicta, because the appellants seem to rely on those dicta.
    
    The res adjudicata in Street v. Street was, that if a will be admitted to probat in general terms, though it appear on the face of the sentence of probat, that it was not attested by any witnesses, nor wholly written by the testator, and so was not, in point of law, a good will to pass lands ; it becomes a good will to pass lands if not contested by bill within seven years from the time of probat.
    And this is precisely the converse of the position taken by the appellants, that time gives no validity to a proved and recorded will, if it appear, on the face of the sentence of probat, that it was not proved according to the requisitions of the statute as a will to pass lands.
    For the rest I submit, that if Judge Tucker's speculative notion, that Street's will was a good will to pass lands, only because it is possible that the three justices who swore to the genuineness of the signature, also swore that the whole will was in the testator’s handwriting—and this although it was proved in the case that Parke Street wrote the will for his father—it will be seen by adverting to the principal case, that the validity of Mrs. Parker’s will to pass lands will be sustained, in conformity with his notion of the law.
    For it is possible that John B. Weldon, the only subscribing witness to Mrs. Parker's will, who is said on the face of the sentence to have proved the will, swore, also, before the Court of probat, that the will was wholly written by Mrs. Parker. And the strength of this view would not be impaired, according to Judge 
      Tucker’s idea of the matter, by the fact, proved in the case aliunde, that Hierome L. Opie wrote the will for his sister, Mrs. Parker, and that she merely signed and acknowledged it.
    But enough of these speculations. I submit that the appellants have wholly failed to sustain the ground they have taken, and that the decree of the Court below, pronouncing the will of Mrs. Sally Parker, a good will, at this day, to pass lands, is sustained by a long train of decisions made by this honourable Court.
    
      Lyons.
    
    The questions for the adjudication of this Court, are:
    1. Is the will of Mrs. Sally Parker a good will of lands ?
    2. If it be not, did the sentence of the Court of probat establish it as a will of lands ?
    3. If it did, was all enquiry into that sentence occluded when this suit was instituted ?
    Upon the first point, argument cannot be necessary. The act requires the will to be attested by two or more credible witnesses, in the presence of the testator, where, as in this case, the will is not wholly written by the testator. The will is attested by only one witness, and the sentence of the Court of probat affirms that it was proved by only one witness; the same who attested it. The will was, therefore, not a good will of lands when made, and when admitted to probat.
    Upon the second point, I submit that the sentence of the Court of probat does not establish the will as a will of lands, and that the contrary conclusion is not only against the face of the sentence, but against every legal and proper intendment from it.
    In its terms that sentence says not one syllable about lands; it does not profess to establish the will, as a will of lands, and I insist that no will is to be considered as established as a will of lands unless the sentence of the Court so declares, or unless it is authenticated as, and admitted to probat upon the testimony required by law to make it, a will of lands. If the Court adjudges by its sentence that it is a will of lands, then no doubt arises as to the meaning of the Court, and the only open question is as to the correctness, in law, of its judgment, and like the judgment of every other competent Court, it must stand and be obeyed, until reversed. If it does not so adjudge the will in terms, yet if the record shews that the will was authenticated as a will of lands, and the quantum of proof required by law to sustain a will of lands was offered to the Court, and the probat is general, the legal intendment and just inference, in favour of the correctness of judicial proceedings, will sustain the sentence, and interpret it to be, what, upon such proof, it should be, and make it a pro-bat of a will of lands. But this intendment can be made only because it is in consonance with the evidence, and the judgment proper upon it.
    These are the plain rules of common sense and necessity, and the rule therefore of the law, as applicable to all judgments, either as evidence or estoppels; and judgments or sentences of Courts of probat can stand upon no other, or higher, ground than the judgments of other Courts, having jurisdiction over the subject matter. No Court has ever professed to place them upon higher ground, and there certainly is no reason for such a distinction in their favour. Can there be any other rules, than those which I have mentioned, for the purpose of determining the force and effect of a judgment or decree in one case, when relied irpon as a bar in another ?
    A judgment in one case, is permitted to be used in another case, under the following limitations, viz :
    I. The parties must be the same.
    
      II. The point in controversy must be the same. 1 Phillips’ Ev. 333; Pleasants v. Clements, 2 Leigh 474 ; I Greenleaf’s Ev., § 522, 528, et seq.
    
    And a judgment concludes the parties only, and concludes them, “ only as to the grounds covered by it, and the facts necessary to uphold it.” 3 Cowen’s Notes on Phillips’ Evidence, p. 826, note 587 to 850. But it is not so as to any matter to be inferred by argument. 1 Phillips’ Ev. 333, and authorities first cited.
    The question then arises, how are you to determine whether the parties and subject matter are the same. The answer, as to parties, is, that they must be parties upon the record, or parties in interest, privies. As to the subject matter ; if the record shews distinctly what the subject matter of the suit was, and the point decided, it is conclusive, but if it does not, then evidence aliunde must be resorted to. Cowen’s Notes to Phillips, p. 839-40, note 590; Ibid. 971-2, note 692; 1 Greenleaf’s Ev., § 532, p. 680. Now let these principles be applied to this case, and they shew conclusively that the sentence of the Court of probat is not conclusive, or even evidence to sustain the will of Mrs. Parker, as a will of lands. First, the judgment is conclusive (or competent) “ only as to the ground covered by it and the facts necessary to uphold it.” Here the sentence does not cover, that is, by its terms cover, the ground that this is a will of realty, because there is no such declaration in it; and, secondly, the evidence upon which it is avowedly based, is not sufficient to uphold it as a judgment that this is a will of lands, for it appears by the will and the sentence, that there was but one attesting witness to the will, and that the ouly witness who testified in Court; while the law requires two witnesses to a will of lands. The record shews also, that it was not competent to offer any evidence to prove the will as a will of lands, because the will was attested by one witness only, and therefore, the issue was not, and could not be, whether it was a will of lands, and of course, the judgment is not a judgment on that point. Manny v. Harris, 2 John. R. 24. And of course the judgment cannot be regarded as a judgment upon that point.
    Nothing can be plainer or more just, than the reasoning upon which the law upon the subject rests, for it is impossible to conceive that an issue can be decided where it cannot be made, or that it can be made where evidence cannot be heard to sustain it. Courts and juries sometimes decide erroneously, the issue made by the pleading and evidence, but-it was never heard that either could make and decide an issue without evidence. Certainly such a presumption is not to be made against a Court. Therefore, Phillips, at p. 333, vol. 1, properly says, “ one great criterion for trying whether the matter or cause of action be the same, is, that the same evidence will maintain both actions.” And it cannot be otherwise, as the character of every case depends upon the facts ; and evidence is but the proof of the facts. If, therefore, the evidence which is competent and necessary to sustain one case, cannot be heard in another, the judgment in the first cannot be obligatory in the last.
    The judgment, therefore, instead of being regarded as conclusive, must be rejected wholly, or evidence aliunde resorted to. Hence, the rule, as established by almost inumerable decisions, which are cited by Cowen & Hill, in their note to Phillips, (838, note 590,) that when the record shews that the point which has been decided is the same, it shall be taken as conclusive, and where it does not, parol evidence may be, and must be, resorted to, to shew it, as otherwise the Court, before whom the judgment is offered, could never determine whether the judgment was competent evidence or not, and therefore must reject it, because the party offering a record must shew its competency. See also Cowen & Hill’s Note, p. 971-2, note 692. And this is equally true, of course, where the record shews that the point adjudicated was not the same.
    If, then, the sentence of the Court of probat were offered in an ordinary case, as having adjudicated that the will of Mrs. Parker was a good will of lands, it would be rejected;
    I. Because it does not shew that fact upon its face.
    II. Because it shews the reverse, and shews that upon the evidence, that enquiry, that issue, could not have been before the Court, and therefore was not decided.
    III. Because if the evidence beyond the sentence be looked to, (because the sentence is considered ambiguous,) that evidence shews that the point now involved was not before the Court, and therefore was not decided by it. And if upon such facts, the Court had undertaken to decide a point not before it, the decision would be of no value.
    It may be said that this was not a judgment in a suit or action between parties on the record, and thus an attempt may be made to elude the force of the law of evidence as to judgments. But this view, if taken, only weakens the case for the appellees; for if the objections to the judgment would be valid where there were parties to the suit, they must apply more strongly to a case in which there were no parties, and in which nothing could be waived, therefore, by any omission of the parties. It stands more properly, being probat in common form, upon the footing of a judgment by default, in which every thing necessary to sustain the judgment must appear upon the face of the record, and errors which would have been cured, or waived, by a simple appearance, are fatal; as a variance between the writ and the declaration. Nadenbush v. Lane, 4 Rand. 413. And such seems to be the view which the law takes of the sentence of Courts of probat: for a probat in solemn 'form is like any other contested judgment, while that in common form may be contested at any .. .... time within seven years.
    But it is said that the sentence of a Court of probat stands upon a different footing from any other judgment, as to the qualities upon which I have commented, and is to be likened to the sentence of the Ecclesiastical court as to a will of personals, because our Courts of probat have jurisdiction over wills of realty, as well as personalty, and, although probat of a will of realty is not necessary to its validity, yet if probat be granted generally, it is to be regarded as probat of a will of lands as well as personals, and conclusive after seven years, although it was proved as a will of personalty; that is, by such proof as would establish a will of personals only, and although that fact appears in the sentence. This, I confess, is to me a most singular conclusion.
    It is certainly true that the judgment is conclusive between the parties when it does decide the point. How can it be also true that the judgment is conclusive when it does not decide the point ? It is certainly true, that, to make the judgment conclusive, the record must shew the identity of the point, and that it was decided, or parol evidence must supply the omission. How can it be also true that the judgment is conclusive, although neither the record or parol evidence shew that identity and determination ? It is certainly true that the judgment is not conclusive, if it is apparent that upon the evidence before the Court, the point could not have been raised, and from the character of the case, no evidence which could raise the point was admissible. How can it be also true that the judgment is conclusive upon this same state of facts ? The only answer to be given to these enquiries is, that it is to be inferred that the Court of probat did decide the point, because it might have decided the point. To this answer, the reply is, first, that it is inapplicable to the case, because the record shews that the Court could not, upon the evidence before it, have properly decided the point, nay, was forbidden by law to do it; and secondly, it is not to be inferred that the Court violated its duty, and rendered an illegal judgment, in order to give to that judgment an efficacy, which it would not have, if it be, or be presumed to be, such a judgment as the Court might properly, and should have rendered on the case before it.
    I have always supposed that every thing was to be presumed in favour of judicial proceedings, and that it was never to be presumed that a Court has decided erroneously, or decided a point not before it. But before I proceed to consider the correctness of the inference, if any inference is to be made, let me take up the higher question, viz., the right to make any such inference. I utterly deny it. No judgment can be made to conclude a point by inference, or argument from it. It must be shewn to be so by its own face, or evidence aliunde. The authority already cited from Phillips, 1st vol. 321, shews that a judgment is never to be considered as covering any point, when it can only be inferred by argument ; and Cowen & Hill, in their note 557, on this passage, say, that the principle is universally admitted, and cite a vast number of cases. And the same is announced as the law by Greenleaf, 1st vol., § 528, p. 676, following the decision in the Dutchess of Kingston’s Case, 20th vol. State Trials 538, and numerous American decisions.
    But if argument may be resorted to, to shew that a point not appearing was decided, when may that be done ? I answer:
    I. When the record is silent; for if it is not, the argument is unnecessary.
    II. When the inference is in consonance with what does appear in the record, and not opposed to it, and makes the judgment harmonize with the evidence as well as with the law.
    
      And that such inference is never admissible:
    I. To stultify the Court by making it decide contrary to law, and therefore ignorantly.
    II. When the record shews what the point before the Court was by shewing what the evidence was.
    III. When the inference would lead to a conclusion not warranted by the evidence which was before the Court.
    IT. When, upon the whole, the conclusion from the inference is, that the Court has done wrong.
    Every presumption should be made in reason, in justice, and upon grounds of public policy and expediency, in favour of the correctness of judicial proceedings.
    In Jackson v. Pesked, 1 Maule & Selw. 234-237, Lord Ellenborough said: “ After verdict, it will be presumed that those facts, without which the verdict, could not have been found, were proved, though they are not expressly and distinctly alleged in the record; provided it contains terms sufficiently general to comprehend them in fair and reasonable intendment.” So in the case of The King v. The Inhabitants of Haslingfield, 2 Maule & Selw. 558, he said: “ Where a person is required to do an act, the omission to do which would be criminal, his performance of that act shall be presumed until the contrary be shewn.” And it is now a legal maxim, in respect to judicial proceedings, that “ omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium.” And in conformity with these principles, are the decisions of this Court, in Stephens v. White, 2 Wash. 203; Chichester v. Vass, 1 Call 83; Ford v. Gardner, 1 Hen. & Munf. 72.
    These cases establish the principle that every thing is to be presumed in favour of judicial proceedings, and where the record is silent, “just and reasonable, not arbitrary inferences,” axe to be made. And they all repudiate the idea that when the record speaks, inferences may be resorted to, and yet more, that inferences may be resorted to against the record, which is contended for and must be maintained m this case, or the appellee must fail.
    This judgment is, in principle, like a special verdict; for it finds not only the evidence, but the fact proved by it, and the Court is asked to infer that something else was, or might have been proved, in order to make the judgment, by the inference, cover a point which otherwise it would not cover. Now the law, settled as to a special verdict, is, that “ no material fact, not found expressly, or by very evident implication, can be supplied by intendment.” Tunnell v. Watson, 2 Munf. 283.
    A judgment is never, therefore, presumed to be erroneous. But it is said that this honourable Court has decided otherwise in interpreting our statute concerning the probat of wills, and has affirmed that where it appears by the sentence of a Court of probat that there was only one attesting witness to a will, and upon his testimony the will was admitted to probat generally, without saying that it was admitted as a will of personals, or of lands, this shall be considered as admitting it to probat as a will of lands; and the maxim stare decisis, is appealed to. With all respect, I submit there is no authority for this position; and a review of the cases will shew it.
    [The counsel reviewed at length the cases of Bagwell v. Elliott, 2 Rand. 190; West v. West's ex'or s, 3 Rand. 373 ; Nalle v. Fenwick, 4 Rand. 585; Vaughan v. Green, 1 Leigh 287, decided in this Court; and after referring to the English authorities to shew that the entire probat of a will of real and personal estate will operate only as a will of personals, deduced from the authorities the conclusions which follow :]
    I. That the judgment of any Court is conclusive only as to the points embraced by it, and not such as may by inference be deduced from it.
    
      II. That to determine that fact, the face of the record must be first consulted, and if the point appears there, it is conclusive ; but if it does not, then evidence aliunde may be resorted to for the purpose of proving the fact, in order to apply the judgment, because the conclusiveness of the judgment rests entirely upon the ground that the question is “rem adjudicatum.”
    
    III. That this rule applies as much to judgments of the Court of probat, as those of other Courts, and they rest upon it in fact for their whole validity.
    IY. That in order to give this effect to the judgment of the Court of probat. it must be:
    1. A Court of single jurisdiction, and therefore its judgments necessarily refer to a particular point; or,
    2. The sentence must shew the point decided, or it must be shewn by other evidence.
    3. That probat of a mixed will is properly entire, and confirms the will as a will of realty, or realty and personalty, according to the evidence which proves it, and does not, by its face, simply, confirm the will as a will of realty.
    Y. Where the judgment is silent, and the evidence shews, that upon it the point could not have been raised, the judgment has no efficacy, and this is true, as well of the Ecclesiastical court as any other.
    YI. That in this case the sentence is not conclusive:
    1. Because it does not, upon its face, decide the point now in controversy.
    2. Because the will is mixed, and the sentence being properly entire, its conclusiveness depends upon the evidence offered to sustain the will; and
    3. Because it shews by its face, that upon the will, and the evidence before the Court, the point now under consideration could not have been made, and of course could not be decided.
    YII. That the sentence, thus considered, was not a probat of the will as a will of lands, and no bill could be filed to contest it, the probat otherwise being right, and the limitation of seven years does not apply, therefore, to the case. It applies only to such probat as could have been contested, which was a probat of personals, which is not contested.
    But I insist farther, that the limitation of seven years does not apply to the case, because the contest about the will was, in fact, commenced within that time from the probat. The will was admitted to probat on the fifth day of November 1821. The bill in this cause was filed on the first day of July 1826, which was within five years (4 years and 8 months) from the pro-bat ; and the answer of Judge Parker, contesting the probat, was filed in January 1827, being less than six years after the probat. Now, 1 submit, that this was as effectual a contesting of the will, as if a bill had been filed by the defendant against the plaintiff. The bill was filed to set up the will and obtain the benefit of it; the answer denied the validity of the will as a will of lands, and contested the probat. Now, what need was there of a cross bill between these same parties, as to the very matters put in issue by the bill and answer ? A cross bill is brought by a defendant against the plaintiff', touching the matter in question in the cause; to obtain either a necessary discovery, or full relief to all parties. 1 Smith’s Ch. Prac. 459; Mitford’s Plead. 75. And at the hearing of a cause, when the Court finds that it cannot decide the cause without a cross bill, it will order one to be filed. 1 Smith’s Ch. Prac. 460; Mitford 77. But here no discovery was wanting from the plaintiff, nor was the cross bill necessary to enable the Court to grant full relief. But if it was, then the Court of chancery should have ordered one to be filed; and for the failure to do so, if for nothing else, the decree should be reversed.
    But the act of Assembly does not take away the original jurisdiction of the Court of chancery to try the validity of wills of lands. It only limits the time within which it may be done.
    It must be done within seven years, and not after. But surely the Legislature never intended to say, that if a bill be brought to execute a will within a month after the probat, and the validity of the will is directly put in issue by the pleadings, another suit must be instituted, another bill filed, to raise the same issue. To what good end shall this be done, since all the Court can do is to direct an issue to try the will, and that may as well be done when the answer contests the will as when the bill does. Nothing is lost or gained to either party by the form of the pleadings, as the question is not to be decided like other chancery causes, but by a jury. Banks v. Booth, 6 Munf. 385, was a bill to perpetuate testimony, and set up a will of lands and slaves. The answer denied the will. The Court of chancery established it. This Court said an issue should be directed, although they thought the case apparently in favour of the plaintiff. The statute was then in force, and the Court, although they do not say in terms, must have thought it regulated the proceedings in all contests about the factum of a will, or that the jurisdiction of the Court of chancery was not affected. Judge Story says, Commentaries on Equity, 2d vol., § 1446, p. 671: “ If the will is of personal estate, and a probat thereof is produced from the proper Ecclesiastical court, that is ordinarily deemed sufficient. But if the parties are dissatisfied with the probat, and contest the validity of the - will, the Court of equity will suspend the determination of the cause, in order to enable the parties to try its validity before the proper ecclesiastical tribunal, and will then govern itself by the result. If it is a will of real estate, and its validity is in like manner contested in the cause, the Court will, in like manner, direct its validity to be ascertained, by directing either an issue to be tried, or an action of ejectment to be brought at law; and will govern its own judgment by the final result.” And he farther adds, that the Court will, in every case of the sort, direct an issue devisavit vel non, unless the . . . . heir waives it.
    It was clearly wrong, then, in the Court of chancery, to proceed to decide the cause, without directing an issue to try the will. The will was open to contest by bill, certainly at any time within seven years, but the question coming up before the Court of chancery, its decision, when properly made, is obligatory upon the parties, so that a bill could not thereafter, though within seven years, be filed to contest it. 2 Story’s Equ. 670; 1 Atk. R. 628; 3 Woodesson, § 59; 39 Law Lib. 286.
    The case cited from Atkyns is that of Sheffield v. The Duchess of Buckinghamshire. It is directly upon the point, how far a probat may be examined into, and where; and the law is expressly laid down as it is quoted by Judge Story, and the case of Pain v. Stratton is referred to as authority. So in the case of Tatham v. Wright, 6 Cond. Eng. Ch. R. 366; and the case of Gaines v. Chew, 2 Howard’s R. 650. The Supreme court of the United States expressly decides, that when the question of the validity of a will comes collaterally before a Court of chancery, it will decide upon it, and of course its judgment is conclusive. In the case of Wills v. Spraggins, 3 Gratt. 555, this Court has also decided, that the decision by the Court of chancery upon the validity of a will, is conclusive, and no bill or suit shall be afterwards entertained to disturb it. Observe, then, the condition of the defendant here.
    According to the authorities which I have cited, the decision being in favour of the will and against the defendant, is conclusive, and he cannot file a bill after-wards to contest the will ; while, on the other hand, according to the argument against me, the decision, if against the will and in favour of the defendant, is of no avail. And thus a Court may have a rightful power to render a decree against a party, when it has no power to render one for him. For it will be perceived at once that if the Court may render a decree in favour of the defendant and against the will, then the will is properly contested by answer. Now, I submit, as a point too clear for question, that whenever a Court has the power to render a conclusive decree against a party, it has equal power to render one in his favour, and if it may do either, it has jurisdiction over the cause, and, therefore, in this cause, it was perfectly competent to the Court to decide upon the validity of the will.
   By the Court.

The decree is affirmed.  