Lee v. Hamilton , 3 Ala. 529 ( 1842 )

ORMOND, J.

The principal argument urged in this case is, that the transcript of the will of John'Finlay, deceased, as certified by the clerk of Greene-county, in the State of Georgia, is not sufficient to authorise it to be read as evidence in our Courts. The objection is, first,, that it does not appear that there was. any probate of the will in Georgia; and second, that it is not sufficiently authenticated as as a record, under the act of Congress.

1.' The record commences with what purports to be atrans-cript of the will of John Finlay, deceased, which is followed by the'following certificate:

' Georgia, Greene County,

Court of Ordinary, 30th Septémber, 1803.

The within will and testament of John Finlay, deceased, proved in open Court, by the oaths of Jaimes "Wood and John Wood, subscribing witnesses to the same, who declared they saw the same signed and acknowledged by him, the said John Finlay, in his proper senses, and saw E. Park and John Buckner subscribe their names as witnesses thereto.

Thomas Carleton, Clerk.

' Recorded 30th September, 1803.

Thomas Carleton, Clerk.

'This is followed by a certificate of Thomas W. Grimes, who styles himself Clerk of the Inferior Court of Greene' county, sitting for ordinary purposes, and certifies that the foregoing exemplification contains a true copy of the last will and testa-mént of John Finlay, deceased, taken from the records'of his office. To which is added the certificate of the Chairman of the Court, that Grimes is its Clerk, and that his certificate is íri due' form.

' The objection urged is, that the certificate of Carleton does not show that there was any action of the Court declaring that the will was proved by the oaths of the subscribing witnesses, to havebeen duly executed, and that it appears to have' been his own act merely. If faith is placed in the certificate of Grimes, wé think it follows conclusively, that the will was proved. It is clear, that the certificate signed-by Carleton, was endorsed on the will itself, at the time of the probate, and the will and certificate transferred to the records of the Court. The language admits of no- other interpretation! “The within will and testament of John Finlay, proved in open Court by the oaths,” &c. is a declaration by the organ of the Court, that certain facts' transpired in “ open Court,” that is, in presence'of the Judge,'and with his assent. It certainly cannot be presumed by us, that an act done in open Court, had not the approbation of the Court, but was the mere unauthorised act of the clerk.— We think it very clear, that the will was admitted to probate in Georgia; with the mode of doing this, we have no concern.

2. Is the -'trariscript properly authenticated under the act of Congress, of May 17901 That act provides, that the records and judicial proceedings of the Courts of. any State, shall be proved or admitted in any other Court within the United States, by the attestation of the Clerk and the seal of the Court annexed, if there be one, together with a certificate of the Judge, Chief Justice or presiding magistrate, that the attestation is in due form. 1 Story’s Laws U. S. 93.

In Dozier v. Joyce, 8 Porter, 311, we held that the decision on the probate of a will, was a judicial proceeding, and the Court in which it is registered, a Court of Record within the meaning of the act of Congress, and we then sustained the certificate of an officer of Edgefield District, South Carolina, who styled himself sole Judge of the Court of Ordinary, and also keeper of the records, and that he had the power to attest his record in the capacity of both Clerk and Judge. But in this case,' the certificates of the Clerk and J udge, are within. the letter of the act of Congress, the former being authenticated by the seal of his Court, and were properly admitted in evidence.

The declarations of John Dean, senior, the father of the plaintiff’s wife,. and through whom the defendant below claimed, were properly given in evidence. It appears that the negro woman, Hannah, sued for in this action, was bequeathed to the plaintiff's wife by her grandfather, John Finlay, and that during the minority of Mrs. Hamilton, the negro was in the possession of Dean, her father, at which time, on two several occasions, he disclaimed owning the negro, and said she belonged to his . daughter, the plaintiff’s wife. These declarations were certainly evidence against him, or any one claiming through him. The counter declarations of Dean.at other times, were properly excluded. When the admissions of a party are given in evidence against him, any thing said by him at the same time, qualifying or controlling such admission, will be evidence for him, or in other words?-^any one seeking to take advantage of such admission, must take the whole together, that which makes against, as well as that which is in his favor.— But a party will not be permitted to neutralize or destroy the effect of an admission, by evidence of counter declarations at another time, which indeed would be permitting him to manufacture testimony for himself.

Some other facts are presented on the record, but as they were not brought to our notice, or relied on in the ■argument of the plaintiff’s counsel, we have not-thought it necessaryito consider them. • ..

Let the judgment be affirmed.