Spencer v. Spencer

22 F. Cas. 920, 1 Gall. 622

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: November 15, 1813
• Status: Published

Opinion

STORY, Circuit Justice.

It is understood to have been the practice in Rhode Island, to consider the probate of a will conclusive only as to personal estate; probably from a misapplication of the rule, as to probates in the ecclesiastical courts in England. The decision in England rests on the ground, that the ecclesiastical courts have no jurisdiction, except as to personal estate. The law is otherwise in Rhode Island. Its probate courts have complete jurisdiction as to wills, in respect both to real and to personal estates. A will purporting only to affect real estate must still be submitted to their jurisdiction for probate. I have always understood, that a decree of a court of competent jurisdiction upon the very point in controversy is conclusive upon other courts, at least unless fraud be shown. It is on this ground, that an ecclesiastical probate is conclusive as to personal estate in England. And by parity of reasoning, in Massachusetts, where the general laws in respect to wills are almost the same as in this state, the regular probate of a will is held conclusive, as well as to real as personal estate. However, I do not mean to press the point; it will be time enough to decide it, when the case absolutely requires it. If the practice' be founded in error, it ought to be corrected.

Under all the circumstances, I think the office copy of the will ought to be allowed as evidence. The will was originally contested before a competent tribunal, and approved; and the heirs acquiesced without a murmur for eight years at least. No doubt ever was whispered of the capacity of the testator or the regular execution of it. The plaintiff, Mr. Spencer, has borne testimony to its verity by becoming himself a party to the probate proceedings in its favor. There can be no conceivable motive for the defendant to suppress it, in a ease where his whole title hangs upon it. It appears to have been carelessly kept, and as it seems to have been mislaid, and the party is willing to be interrogated, as to all the facts, I am of opinion that the copy should be read to the jury. We all know that papers, which are recorded, are scarcely ever kept with the same care, as those which are altogether private.

The plaintiffs then asked leave to discontinue, which was allowed.