Shephard v. Carriel , 19 Ill. 313 ( 1857 )

Breese, J.

Two objections were raised in the Circuit Court to this will as evidence: Eirst, That there was not sufficient evidence of its due execution and proof in the State of New York. Second, That it was not rendered in the St. Clair County Court previous to the commencement of the suit.

These objections were sustained and the paper excluded.

We are satisfied the will is sufficiently proved. The certificate of the probate in New York is conformable to our statute. R. S. sec. 8, chap. 109. It sufficiently appears from it that the will was duly executed and proved agreeably to the laws and usages of that State.

The right of the party claiming under the will arises out of the will, and by the will, and when the will is probated, the prdS>í?, at the same time, is created of this right, which vested at the death of the testator, the probate not conferring the right, but being merely evidence of the right.

Upon the other point, we think it wholly immaterial when the papers are filed in the Probate Court of our State.

The power of attorney offered in evidence, and the deed executed under it, to the appellant, were properly excluded from the jury, because the certificates of the judge of the Common Pleas of Mercer county, New Jersey, is not conformable to our statute, sec. 20, chap. 24. He does not certify that the person executing the power of attorney is personally known to him as the real person in whose name it is executed. “ I am satisfied,” are not equivalent words. How satisfied ? This should be made apparent in the mode there pointed out, either by personal knowledge, or by proof by a credible witness. The certificate, not furnishing this most necessary proof, is defective.

And the same objection lies to the certificate of the judge of Middlesex county, as to the execution of the deed under the power. The execution of these papers is not aided by the certificate of the clerk of Middlesex county.

Section 16 of our conveyance act, chap. 24, makes the execution and acknowledgment of deeds, made out of this State, available for record when they are in conformity with the laws of the State where made, provided, “ That any clerk of a court of record, within such State, territory or district, shall, under his hand and the seal of such court, certify that such deed or instrument is executed and acknowledged, or proved, in conformity with the laws of such State, territory or district.” Now, it no where appears from the clerk’s certificate that he is a clerk of “ a court of record.” His certificate establishes no such fact, but only that he is “ clerk of the county,” and attests it by the “seal of the county.” A reasonably strict compliance with the requirements of our law, which is very liberal in its provisions, must be insisted upon, and in so doing, this certificate must be adjudged essentially defective. The same remarks apply also to the clerk’s certificate of the official character of the judge of Middlesex.

For the reasons first given as to the rejection of the proof of the will, the judgment is reversed and the cause remanded.

Judgment reversed.