Shields's Appeal

The opinion of the Court was delivered, by

Lewis, J.

In England, when the charter was granted by Charles II. to William Penn, the probate of wills and granting letters of administration, so far as the same related to the personal estate, was under the jurisdiction of the Spiritual Court. But if the testament concerned lands alone, and had no relation to the goods, that Court had no authority to take the probate; and if it attempted to compel the parties to proceed before it, a prohibition would issue : Cro. Car. 396. But, where the will related to lands and goods, and so was a mixed will, it was proper that the probate should be had in the Spiritual Court, in order that the personal estate might be administered; but such probate was not allowed to prejudice the heir, and, in controversies respecting the lands, it was not evidence at the common law. Even the examinations of the witnesses so taken could not be received in evidence respecting the lands: Cro. Car. 396; 4 Burn's Ecc. L. 187. In the charter to William Penn, “power and authority was given to him and his heirs and their deputies and lieutenants,” to appoint and establish officers “for the probates of wills, and granting of administrations.” By the act of 1705 the office of Register-General was established, and the appointment of deputies for the several counties authorized, with power to “take probate of wills and grant letters of administration, according to the powers granted by the royal charter of King Charles II.” Various changes have since taken place in regard to the mode of appointing the register, but his jurisdiction is preserved without any perceptible change, so far as regards the particular question before us. The Act of 1832 directs that the register shall have jurisdiction “of the probate of wills and testaments, of the granting of letters testamentary, and of administration.” As the jurisdiction of the register was created for the purpose of administering the personal estate, his acts were not allowed to conclude the rights of the heir with respect to the land. There was this difference, however, between the English practice and our own, that the probate of a will in the Spiritual Court was not received in evidence at all to affect the title to lands; but the probate before the register was admitted as primd facie evidence, to be contested, disproved, and otherwise rebutted, with as little ceremony as if it was but the testimony of a single witness, entirely unsanctioned by the 'adjudication of a Court of competent jurisdiction. Even the decree of the Register’s Court, after a trial by jury on an issue devisavit vel non, is not regarded as conclusive upon the lands: 2 Wharton 81; 5 Rawle 83; 6 Barr 440. Since the Act of 1832 an effort has been made to give to the decree of the register the usual effect of a decree of a competent tribunal, whether the controversy related to lands or goods; but the effort was ineffectual, and the decree was not allowed to have a conclusive effect upon the lands: 6 Barr 440. The only logical ground upon which this course of decision can rest is, that the proper jurisdiction of the Register is confined to administering the personal estate, and that the probate of wills, being but an incident of that jurisdiction, concludes nothing beyond it. If this be true, it follows, that when his functions are spent in regard to the administration of the personal estate, he cannot take jurisdiction de novo for the purpose of affecting the land. His acts had but an incidental operation in this respect. By reason of the respect due to a tribunal acting within its jurisdiction, his decrees were received as primd facie evidence; but they would certainly not be entitled to even this much respect, if he took cognisance of the incident after his power over the principal was entirely exhausted.

In the case before us, the will of Thomas Shields was admitted to probate, and letters testamentary' issued thereon on the 26th December, 1845. From this decree of the register, no appeal was ever taken. David Weatherly states in his testimony that he was one of the executors of the will, and that he has settled his accounts and been discharged by the Court. After all this, and after the lapse of nearly three years, an application was made on the 23d December, 1848, to prove the republication of the will. This was refused by the register, and upon appeal to the Register’s Court, the appeal was dismissed. The case comes before us upon an appeal from the last-mentioned decree of the Register’s Court. It is not pretended that the proof of republication can have any effect whatever upon the personal estate, or that it has any relation to the duties of the executors, as such, in administering or distributing it. The avowed object is to bring within the operation of the will, certain interests in real estate acquired after its date and before the republication. It is unjust, and productive of great ineonveni-' ence to the public and to the parties that any one should be twice vexed for the same cause. Upon this ground it is a sound principle of law, of almost universal application, that one decree of a Court of competent jurisdiction is binding upon parties and privies. The single exception to the rule is the case of ejectment for lands, in which nothing short of “ two verdicts and judgments rendered thereon” concludes the right; and the question is, whether we ought to promote litigation by putting the parties to the expense and the public to the inconvenience of three decisions before the controversy can be ended. We have no hesitation in returning a negative answer to this proposition.

We think that the register was correct in refusing to receive proof of the republication of the will for the purpose indicated. In Musser v. Curry, 3 Wash. C. C. R. 481, the depositions taken before the register, for such a purpose, were admitted in evidence in ejectment; and in Sharp v. Petit, 4 Yeates 413, depositions taken before a justice of the peace were also admitted in evidence as proof of a will. Had the register, in the case before us, taken the depositions, it might have presented the question whether, on the death of the witnesses, their testimony so taken, could have been received in evidence on an ejectment. But that question is not now before us. There is no good reason for putting the parties to the expense of three trials where only two are allowed by law. It is for their interest, as well as for the interest of the public, that a speedy end should be put to all controversies; and the decree of the Register’s Court must be affirmed.

The decree of the Register’s Court dismissing the appeal from the decree of the register is affirmed.