Opinion of the Court.

Stat. 103, 107; March 3, 1863, c. 91, §§ 3, 5, 16; 12 Stat. 763, 764; June 21, 1870, c. 141, §§ 4, 5; 16 Stat. 161; Rev. Stat. D. C. §§ 772, 800, 930.

The older laws of the State of Maryland concerning wills, executors and guardians, were amended and codified by the statute of 1798, chapter 101, drawn up by Chancellor Hanson, and published in 2 Kilty's Laws, and containing the following provisions:

By sub-chapter 1, § 4, (following the English Statute of Frauds of 29 Car. 2, c. 3, § 5,) it was enacted that "all devises and bequests of any lands or tenements, devisable by law, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of none effect."

Sub-chapter 2, in §§ 1-3, made various provisions for securing the prompt delivery of "a will or codicil," after the death of the testator, to the register of wills for safekeeping until probate; and in § 4, enacted that "an attested copy, under the seal of office, of any will, testament or codicil, recorded in any office authorized to record the same, shall be admitted as evidence in any court of law or equity: Provided, that the execution of the original will or codicil be subject to be contested until a probate hath been had according to this act."

That statute did not authorize the probate of wills of real estate. But in sub-chapter 2, §§ 5-13, and sub-chapter 15, §§ 16-18, it made full and minute provisions for the probate in the orphans' court of "any will or codicil, containing any disposition relative to goods, chattels or personal estate; by which such a will might, if uncontested, be admitted to probate at once; or, if contested, be dealt with "according to the testimony produced on both sides," and be admitted to probate "on such proof as shall be sufficient to give efficacy to a will or codicil for passing personal property;" or, at the request of either party, by a plenary proceeding, upon bill or petition, answer under oath, and depositions, and, it might be,

Opinion of the Court.

the findings of a jury upon issues sent to a court of law for trial; with a right of appeal from the orphans' court to the Court of Chancery or General Court.

By the law of Maryland, and consequently of the District of Columbia, in accordance with what was the law of England until the statute of 1 Vict. c. 26, a will of personal property need not be attested by subscribing witnesses, but might be established, when offered for probate, by the testimony of any two witnesses, or by equivalent proof. 1 Williams on Executors, (7th ed.) 85, 343; Dorsey's Testamentary Law, 57; McIntire v. McIntire, ante, 383, and 8 Mackey, (19 D. C.) 482, 489. A will of personal property, until admitted to probate, was not competent evidence in another suit. Armstrong v. Lear, 12 Wheat. 169, 176. And in Maryland, under the statute of 1798, an order granting or refusing probate of a will, as to personalty, has been considered not merely prima facie, but conclusive evidence in a subsequent suit. Warford v. Colvin, 14 Maryland, 532, 554; Johns v. Ilodges, 62 Maryland, 525, 534.

In Darby v. Mayer, (1825) this court recognized that by a probate under that statute the will was conclusively established as to personalty; but decided that the clause of subchapter 2, § 4, above quoted, by which "an attested copy, under the seal of office, of any will, testament or codicil, recorded in any office authorized to record the same, shall be admitted as evidence in any court of law or equity," did not make such a copy of the recorded probate of a will evidence of title to real estate; and the reasons of the court were stated by Mr. Justice Johnson as follows:

"It is true that the generality of the terms in the first lines of this clause is such as would, if unrestricted by the context, embrace wills of lands. It is also true that the previous chapter in the same article prescribes the formalities necessary to give validity to devises of real estate; it is further true that the previous sections of the second chapter indicate the means, and impose the duty of delivering up wills of all descriptions to the register of the court of probates, for safekeeping, after the death of the testator, and until they shall

Opinion of the Court.

be demanded by some person authorized to demand them for the purpose of proving them.

"But it is equally true that the act does not authorize the registering of any will without probate. Nor does it, in any one of its provisions, relate to the probate of any wills, except wills of goods and chattels.

"The clause recited makes evidence of such wills only, as are recorded in the offices of courts authorized to record them. But when the power of taking probate is expressly limited to the probate of wills of goods and chattels, we see not with what propriety the meaning of the clause in question can be extended to wills of any other description. The orphans' court may take probates of wills, though they affect lands, provided they also affect goods and chattels; but the will, nevertheless, is conclusively established only as to the personalty.

"Unless the words be explicit and imperative to the contrary, the construction must necessarily conform to the existing laws of the State on the subject of wills of real estate. And when the power of taking probates is confined to wills of personalty, we think the construction of the clause recited must be limited by the context.

"We are, therefore, of opinion that there was nothing in the law of Maryland which could, under the Constitution, make the document offered to prove this will per se evidence in a land cause." 10 Wheat. 465, 471, 472.

In Robertson v. Pickrell, (1883) this court held that an exemplified copy of the probate of a will of real estate in a court of Virginia, authorized by the law of that State to take probate of wills, as well of real estate as of personal property, was incompetent evidence, in the courts of the District of Columbia, of title to real estate in the District; and, speaking by Mr. Justice Field, said: "In most of the States in the Union, a will of real property must be admitted to probate in some one of their courts, before it can be received elsewhere. as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such pro

Opinion of the Court.

bate. The common law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also; but the probate is evidence of the validity of the will, only so far as the personal property is concerned. As an instrument conveying real property, the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses; or, if they be not living, by proof of their handwriting." 109 U. S. 608, 610.

In the State of Maryland, the statute of 1798 continued to be in force until the legislature of Maryland, by the supplemental statute of 1831, c. 315, § 1, authorized the orphans' courts to take the probate of "any will, testament or codicil, whether the same has relation to real or personal estate, or to both real and personal estate," in the same manner as, under the original statute, they might of wills disposing of personal estate; "which said probate, as concerns real estate, shall be deemed and taken only as prima facie evidence of such will, testament or codicil;" and, in § 16, provided that any will admitted to probate should be kept in the register's office, except that it might, at the trial of an issue of devisavit vel non, "be adduced in evidence under care of such register, or of any person in that behalf by him deputed, under a subpœna duces tecum, issued on special order of the court holding such trial."

The statute of Maryland of 1854, c. 140, authorized copies of wills and probates made in other States to be filed and recorded in the office of the register of wills in any county in Maryland; and provided that a copy of the record, under the hand of the register and the seal of his office, should "be evidence in all suits or actions, at law and in equity, in any court in this State, wherein the title of any property, real or personal, thereby devised or given, shall be in question, with the same force and effect as if the original will had been admitted to probate in this State, according to the laws thereof." Before that statute, the record of a probate in another State was inadmissible in evidence in the courts of Maryland. Budd v. Brooke, 3 Gill, 198, 232; Beatty v. Mason, 30 Maryland, 409, 412.

Opinion of the Court.

Congress never legislated upon the subject mentioned in either of the last two statutes of Maryland, until it passed the act of July 9, 1888, c. 597, now in question, entitled "An act relating to the record of wills in the District of Columbia," and the whole enacting part of which is so brief, that it may well be quoted once more, as follows: "The record of any will or codicil, heretofore or hereafter recorded in the office of the register of wills of the District of Columbia, which shall have been admitted to probate by the Supreme Court of the District of Columbia, or by the late orphans' court of said district, or the record of the transcript or the record and probate of any will or codicil elsewhere, or of any certified copy thereof, heretofore or hereafter filed in the office of said register of wills, shall be prima facie evidence of the contents and due execution of such wills and codicils: Provided, that this act shall not apply in any cause now pending in any of the courts of the District of Columbia."

Before the passage of this act, as has been seen, neither the Supreme Court of the District of Columbia, nor its predecessor, the orphans' court, had any jurisdiction to admit to probate a will of real estate only; and, consequently, no record, in any court of the District, of a probate of a will would be any evidence whatever of title to real estate; but, as to personal property, the probate of a will would seem to have been regarded as conclusive evidence; and there was no statute law in the District concerning the record or the proof of wills made and probated elsewhere.

The act of 1888 is a statute of evidence, and not of jurisdiction. It does not purport to confer any jurisdiction whatever. Its title describes it as "relating to the record of wills." The body of it is, in terms, a simple declaration that records of probates of wills or codicils in the District of Columbia "shall be prima facie evidence of the contents and due execution of such wills and codicils." And the concluding proviso, that it shall not apply to pending causes, treats it as a mere rule of evidence.

The records thus made evidence include those of wills and codicils admitted to probate by the courts of the District,