PROBATE OF A WILL. The proof before an officer authorized by law that an instru ment offered to be proved or registered is the last will and testament of the deceased per son whose testamentary act it is alleged to be.
Jurisdiction. In England, the ecclesias tical courts were the only tribunals in which, except by special prescription, the validity of wills of personal estate could be estab lished or disputed. Hence in all courts, the seal of the ecclesiastical court was conclu sive evidence of the factum of a will of per sonalty; from which it followed that an executor could not assert or rely on his au thority in any other court, without showing that he had previously established it in the spiritual court,—the usual proof of which was the production of a copy of the will by which he was appointed, certified under the seal of the ordinary. This was usually call ed the probate. The probate of a will was conclusive as to personalty ; but not as to realty, which could only be settled by an issue out of chancery or a trial at law; 4 Kent 510.
The ecclesiastical courts had no jurisdic tion of devises of lands ; and in a trial at common law or in equity the probate of a will is not admissible as evidence, but the original will must be produced, and proved the same as any other disputed instrument. This rule has been modified by statute in some of the states. In New York, the rec
ord, when the will is proved by the sub scribing witnesses, is prima facie evidence, and provision is made for perpetuating the evidence. See Jackson v. Hasbrouck, 12 Johns. (N. Y.) 192. In Massachusetts, North Carolina, and Michigan the probate is con clusive of its validity, and a will cannot be used in evidence till proved ; Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; 2 Mich. Comp. Laws (1871) 1375; Bat tle, Rev. 849. In Pennsylvania, the probate was held not conclusive as to lands, and, al though not allowed by the register's court, it might be read in evidence ; Smith v. Bonsall, 5 Rawle (Pa.) 80; but see McCay v. Clay ton, 119 Pa. 138, 12 Atl. 860; but it becomes conclusive as to realty, unless within five years from probate those interested shall contest its validity. In South Carolina the will must be proved de novo in the court of common pleas, though allowed in the ordi nary; Gibson v. Brovirn, 1 N. & McC. (S. C.) 326. In New Jersey, probate is necessary, but it is not conclusive ; Denn v. Allen, 2 N. J. L. 42; except in actions not commenced within seven years from the probate; N. J. Rev. Stat. 1250. See EXECUTORS AND ADMIN