Smith's Lessee v. Redden , 5 Del. 321 ( 1851 )

By the Court.

The record of a will differs from a mere ministerial record, as it is the judgment of a court of competent jurisdiction, admitting it to probate. Such decision cannot be questioned collaterally. (Martin’s lessee vs. Roach, 1 Harr. Rep., 277 ; Penel’s lessee vs. Weyant et al, 2 Ibid, 503.) This is unquestionably so, since the act of 1829, concerning wills, and the constitution of 1832; and we think the same jurisdiction and power are given to the register by the constitution of 1792; an appeal lying also under that constitution from his decision, admitting a will to probate.

" But the terms of the probate here are the same as required by the act of 1753, (1 Del. Laws, 342;) and if invalid, probably all the wills admitted to probate in this county on the proof of one witness are invalid; as this seems to be a general form.

Record admitted in evidence; exception prayed and granted.

The record of a survey made by authority of the State of Maryland, was offered and objected to—1. Because it was not a record of our own courts. 2. JFor want of authentication under the act of Congress.

It was certified by the register of the land office, whose official qualification was certified by John Johnson, styling himself Chancellor of Maryland, and a judge of the land office of Maryland; and a certificate by the Secretary of State, under the great seal of Maryland, that John Johnson was Chancellor.

The Court

admitted it as properly authenticated, under the act of Congress, and also under our act of assembly. (9 vol., 488; 1 Greenl. Ev., 662, § 485, n. 24.)

A deed was offered in evidence, which had been acknowledged before and certified by W. A. B., one of the judges of the Court of Common Pleas of the State of Ohio, in and for the county of Piscataway; and the official character of the judge was certified under the hand of the clerk, and seal of the said court of Common Pleas. The deed was objected to, because it did not appear hj the certificate of the judge that the Court of Common Pleas was a court of record, and the court divided on the question of its admissibility. All the judges agreed that it must appear that the acknowledgment was taken before the judge of a court of record; but two of them thought this sufficiently appeared by the seal of that court appended; and that it was-not absolutely necessary that the certificate should state this.