text:
    *James G. Birney v. The State of Ohio.
    An indictment for harboring and secreting a mulatto slave is bad, unless it aver that the accused knew the person harbored was a slave.
    This was a writ of error, reserved in the county of Hamilton.
    The plaintiff in error was indicted for harboring and concealing a fugitive female colored slave. The indictment contained nine counts, in which the offense was variously set out — some of the counts specifying more or less of the particulars of the case,, four of them chárging that the defendant harbored the slave, well-knowing that she was a slave and a fugitive from service. The-first count, omitting the form of introduction and conclusion, was in these words:

      “ That James G-. Birney, on March 1, 1837, and for a long time* previous thereto, to wit, for six months, at the township aforesaid, in the county aforesaid, did unlawfully harbor and secrete a •certain mulatto girl by the name of Matilda, the said Matilda then being a slave and the property of one Larkin Lawrence, contrary to the form of the statute,” etc.
    The record shows that, at the trial of the cause, the counsel for the traverser excepted to four different positions ruled by the ■court.
    1. The court ruled that it was competent for the prosecution to prove that the person harbored was the property of Larkin Lawrence.
    2. The court refused to charge the jury that the ordinance and ■•constitution of Ohio precluded the existence of slavery within her territorial limits so effectually as that no proof could be received, in her judicial tribunals, that such a condition existed in •the state.
    3. The proof for the prosecution having shown that the alleged master of Matilda brought her, under his own charge, in a steamboat, to the Cincinnati landing, on the Ohio river, where she remained until she left it for the service of^the traverser, the court refused to charge the jury, that by the operation of the ordinance .and constitution upon the facts, Matilda became emancipated.
    4. The court refused to instruct the jury that it was incumbent on the prosecution to produce and prove the constitution and laws •of the state, establishing the condition of slavery under which Matilda was claimed to be the slave of L. Lawrence.
    The jury found the traverser guilty on the first count, and not guilty on all the others. The court adjudged him to pay a fine *of $50, the utmost penalty of the law, and the costs of the suit — to reverse this judgment the writ of error was brought. The errors assigned were, the first common general assignment, that the judgment was against the plaintiff in error, when it should have been for him, and, in addition, the errors indicated •by the bills of exceptions.
    5. P. Chase, for the plaintiff in error:
    The count, in the indictment of which the defendant was found .guilty charged that he “unlawfully harbored and secreted a certain mulatto girl by the name of Matilda, then being a slave and ■the property of one Larkin Lawrence.” The act, under which the prosecution was instituted, makes it a penal offense to “ harbor or secrete any black or mulatto person,' being the property of any person whatever.”
    I maintain that it is impossible, in Ohio, to commit the offense of harboring, or secreting a person being .the property of another person. I maintain that the relation of owner and property, as-existing between person and person, has, or can have, no existence in this state; and I maintain these propositions as the inevitable results of a sound interpretation of the constitution of Ohio ; and as in full harmony with every provision of the constitution, of the United States, and of the ordinance of 1787. If I can establish these propositions as 1 maintain them, it must follow that so much of this act of 1804, as inflicts a penalty for violating a relation which can not constitutionally exist, must be repugnant to the constitution, and therefore void.
    And, certainly, no argument is needed to prove that the relation of owner and property, as between man and man, can not exist under the constitution of Ohio. This instrument declares •‘that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” It also declares as a direct consequence of these fundamental truths, “that there shall be neither slavery nor involuntary servitude in this state, otherwise than for the-punishment of crimes;” and that “no alteration of the constitution shall ever take place, so as to introduce slavery or involuntary servitude into this state.” From these extracts, it appears,, that the one principle which the framers were especially anxious to make ^prominently conspicuous, and to surround with safeguards the most impregnable, was the equal freedom of all men ; and the one thing which they sought to brand with deepest reprobation, and to exclude forever from the institutions of the state, was the slavery of man to man. It can not be doubted, then, that were Ohio a distinct and independent nation, no such relation as owner and property could exist, as between man and man ; nor could any law, recognizing and protecting such a relation, be of the least validity.
    But Ohio is not a separate and independent nation. We regard the federal constitution and the ordinance of 1787, as of higher-authority than our state constitution. If these recognize this-relation and sanction it, state legislation may constitutionally recognize and protect it. We must examine, then, and endeavor to .ascertain the import of the provisions in the ordinance, and in the constitution of the United States. The provision in the ordinance is in these words — “ any person escaping into the same” (i. e. the Northwest Territory) “from whom labor or service is .lawfully claimed in any one of the original states, maybe lawfully reclaimed and conveyed to the person claiming his or her labor or service, as aforesaid.” The provision in the federal constitution was, obviously taken from that in the ordinance, and is as follows: “No person, held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of .any law or regulation therein, be discharged from such service or labor; but shall be -delivered up on claim of the party to whom such labor or service may be due.”
    In order to arrive at the true import of these provisions, it is proper to refer to the history of the country at the time when they were incorporated, first into the fundamental compact of the territory and people northwest of the Ohio with the states and people of the Union; and soon after, into that of all the states with each other. It was then acknowledged that, in some of the states, institutions existed so incompatible with slavery, that the slave who might escape into them would become a free man the moment he should enter their territory, while in other states, .slavery was recognized and protected by fundamental law and legislative enactments. This state of things is implied in the ■constitutional provision just cited. Institutions must have existed in some states, by the operation of which, the servant escaping into them, was discharged from his involuntary service, for otherwise this claim would have been nugatory. And Mr. Madison, *in the course of the debates in the convention of Virginia, speaking of the condition of things then existing, says: “At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws.” The slaveholding states were apprehensive of the losses they might sustain in consequence of this state of things, and all dreaded its consequences to the Union. To obviate the apprehended evil, the clause, which has just been cited, was introduced into the constitution as a clause ■of compact between the states, similar to the clause which had been just before inserted in the ordinance, and expressly declared to be a clause of compact between the original states and the people and states of the northwest territory. It was cautiously framed, so as to avoid all recognition of the condition of slavery, or the relation of ownership between man and man. It left the several states free to create, or continue, or abolish such relations between individuals within their several territories as they pleased, just as they had been under the articles of confederation. It required each state to deliver up servants escaping into its territory from other states, to their lawful masters — to deliver them up as servvants, not as slaves — far less as property. It bound each state to recognize and protect, in a particular class of cases, the relation of-master and servant, as established by the laws of sister states, but no other additional relation. It left the whole responsibility of all other relations upon the states which might establish or continue them. I am very confident that this construction exhibits the true import of this constitutional provision, and the more confident, because the very terms of the provision seem to exclude every other interpretation. For who is.to be delivered up ? Any person held to service and escaping. Are slaves and human chattels alone held to service ? Surely not. To say nothing of servvants for hire, there is the great class of apprentices who are “ held to. service” in-the strictest sense of the terms, and are yet neither slaves nor property. It can not be denied that the provision embraces the case of an escaping apprentice, and if so, all argument,whether or not it recognizes property as a relation of one human being to another, must be at an end. It recognizes no such relation. On the contrary, the exact reverse of such recognition is strongly implied.
    Another argument that no such recognition was intended, is to be found in the statute books of that period. I refer the court especially to the statutes of Virginia. Tate’s Digest, 25, 476, 491. It will be found that those statutes describe three classes *of persons held to service — apprentices, servants, and slaves; and that the right of recapture is provided for in regard to each class. It could not be said then that a statute of Virginia, providing for "the recapture of persons held to service, would contain any recognition of the relation of property as between persons. It would only recognize a general relation which might exist, indeed, in connection with that other relation, but might also exist independ* ent of it.

      If I am correct in this construction of the constitution and the-ordinance, it follows that there is nothing in either which requires or authorizes the legislature of any state to pass laws for the protection of the right of property in human beings. Every purpose intended to be answered by the provisions in either instrument,, may be effectually accomplished without any such degradation of the non-slaveholding states. And if so, the provision of the act. under which this indictment was found, abhorrent as it is to the-whole spirit of our institutions, and to the exq>ress provisions of our constitution, must bo void.
    The second question presented by the record, and the only remaining question to which I wish to call the attention of the court,, is this : Was the woman, Matilda, at the time she was employed by the defendant as a servant, the slave of Larkin Lawrence ?' Admitting, for argument’s sake, the prosecution to be constitutional, was the offense, charged in'the indictment, actually committed ?
    Now, it is certain that slavery, wherever it exists, is a creature' of positive institutions. It has no support in natural right; ou the contrary, it is in direct derogation of natural right. Before slavery can be, natural right must be overborne by force, custom, or legislation. In the language of the highest court in Louisiana,. Lunsford v. Coquillon, 14 Martin, 401, “the relation of owner and. slave is, in the states of this Union, in which it has a legal existence, a creature of the municipal law.” In the still more emphatic' language of the Supreme Court of Mississippi, Harvey et al. v. Decker and Hopkins, Walk. 36, “Slavery is condemned by reason and the laws of nature. It exists, and can only exist, through municipal regulations ; and in matters of doubt, is it not an unquestioned rule, that courts must lean in favorem vitos et libertatis?” It is also certain that the municipal regulations of no state have proprio vigore, any extra territorial force. “There is no doubt,” says Chancellor Kent, “ of the truth of the general proposition,. that the laws of a ^country have no binding force beyond its own territorial limits, and their authority is admitted in other-states, not ex proprio vigore, but ex comitate, or in the language of Huberus, lquatenus sine prendido indulgentia fieri potest.’” It is. also certain that “no nation is under any obligation to give effect to the laws of another nation, which are prejudicial to itself or its citizens; that in all cases each nation must judge for itself what. foreign laws are so prejudicial or not; and it is only in oases not so prejudicial that a spirit of comity and a sense of mutual utility ought to induce every nation to allow full force and effect to the laws of every other nation.” Story on Confl. of Laws, 75.
    It is also undeniably true that in all enlightened nations, which do not tolerate slavery, the laws of other states in which it is tolerated, are held to be so prejudicial to the non-slaveholding states and their citizens, and so repugnant to the spirit of their institutions, that slaves held under such laws, cease to be slaves the moment they come within their territories. “It has been decided that the law of England abhors and will not endure the existence of slavery within the nation; and consequently, as soon as a slave lands in England he becomes, ipso facto, a free man, and discharged from the state of servitude.” Ib. 92. So that the fervid exclamation of Cowper is, in truth, an undisputed axiom of English law
    “Slaves can not breathó in England; if their lungs
    Receive our air, that moment they are free:—
    They touch our country, and their shackles fall.
    That’s noble! — "
    So also in France. “ That such is the benign and liberal effect of the laws and customs of that county,” is declared by the highest court of Louisiana. Marie Louise v. Mariot, 8 Martin, 375. It is then not to be questioned that the comity of nations has in no instance, induced any enlightened state to tolerate the slavery, created by the laws of another state, within its territory. On the contrary, it has been uniformly held by the tribunals of slaveholding states, that slaves, permitted by their masters to reside within the limits of non-slaveholding states, become free, through the operation of their laws. 14 Martin, 401; 2 Marsh. 467; Gilman (Va.), 143. It being true then that each nation and state must determine for itself to what'extent it' will admit, upon the principle of comity, the laws of other nations and states to operate within its limits, *it remains to inquire, so far as the present question is concerned, how far the State of Ohio admits, upon that principle, the operation of laws that sanction slavery. And the scope of this inquiry is very limited. We have but to turn to the ordinance, and we find the fundamental and unalterable compact, between the original states and the people and states of the Northwestern Territory, that there shall be neither slavery nor involuntary servitude within that territory; forever. Turning to the constitution of the state, we find the same express interdict reiterated, in the same terms, by the voice of the people. The ordinance then, and the state constitution, expressly prohibit the apjdication of the principles of comity to cases of this description. There is an excepted class of eases, it is true — excepted in the ordinance and excepted in the constitution of the United States, which is paramount to the state constitution. But upon every slave brought within the limits of Ohio, and not embraced within the strict terms of the exception, this great interdict operates with unbroken force. “ Independent of the provisions of the constitution of the United States,” says Judge •Story, “ for the protection of the rights of masters in regard to-•domestic fugitive sales, there is no doubt that the English principle pervades the common law of the non-slaveholding states in America; that is, foreign slaves would no longer be deemed-such, after removal thither.” Story on - Conflict of Laws, 92. The -courts of this state then are tied up from deciding any person to rbe a slave, unless that person falls strictly within the exception -of the federal constitution. They have nothing to do with the .principles of comity.
    What then is that exception? What persons compose that unfortunate class, whose fetters can not be broken by the spirit of • our state institutions? The clause creating the exception has •been already cited. It provides that no persons held to service ■,in one state, under the laws thereof, escaping into another, shall •by any law or regulation therein, be discharged from such service. .Persons held to service in one state, and escaping into another, then, compose the class which are not to be enfranchised by the •operation of the ordinance and our state constitution. Was the woman Matilda a person of this class? Was she held to serviee ;in one state, and did she escape into another? Plainly not. At •the time she left the individual who claimed to be her master, she was within the territorial limits of Ohio, by the consent of that ■individual. If she had ever been a slave, she had ceased to be • such that moment when she was brought by Lawrence within *these limits, and she had power to go whithersover she • chose. Her act in leaving Lawrence, under these circumstances, vwas in no just sense of - the term, an escape. It was the first exercise of that freedom, which the constitution of Ohio had conferred upon her.
    I am aware that some decisions can be found which maintain that slaves, traveling with their masters through free states, will not become free : but these decisions, so far as I have become_acquainted with them, were made by the courts of slaveholding states, under do solemn obligation to maintain the constitution of the non-slaveholding states, to which they denied, in these cases, its legitimate effect; and I look in vain for any warrant for such decisions. Where is the authority for adding to the class of fugitive servants excepted by the federal constitution from the otherwise inevitable operation of free institutions, another class, namely, that of slaves traveling with their masters? The constitution of the United States declares that the provisions of the state constitution shall not affect the condition of servants escaping from the other states into Ohio, and the state constitution yields to the paramount authority of the federal constitution. And then some judge decides that the state constitution shall not affect the condition of slaves traveling through Ohio with their masters Shall the state constitution yield to this decision ? Plain common, sense, fortified by every principle of sound construction, answers no, and must prevail.
    It follows, then, that at the time the woman Matilda was received into the service of the defendant she was not a slave, or the property of any person, and of course that the offense charged has not been, in fact, committed..
    No argument was submitted for the state.
   Judge Wood

delivered the opinion of the court:

The statute upon which the indictment is predicated enacts, “that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars.” We are first called to consider whether, under this enactment, the indictment is sufficient?

It is required that every indictment shall have a precise and sufficient certainty. The omission of a word of substance is fatal. 2 Haw. P. C. chap. 25, sec. 4. Here the plaintiff in error is ^charged with harboring and secreting a certain mulatto girl, by the name of Matilda, the property of L. Larkin. There is no averment that the plaintiff in error knew the facts alleged, that Matilda was a slave, and the property of L. Lai-kin, or of any other person; and such is not the legal inference in a state whose constitution declares that all are horn free and equal, and that there shall be neither slavery nor involuntary servitude within its limits, except as a punishment for the commission of crimes. On'the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt. This knowledge should have been averred in the indictment, and proved on the trial, for, without such knowledge, the act charged as a crime was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. “Ignorantia facti doth excuse, for such an ignorance, many times, makes the act itself morally involuntary.” 1 Hales P. C. 42.

It is true that the statute, upon which the indictment is founded, omits the scienter, and the indictment covers all the facts enumerated in that statute. But this is not sufficient; it can not be assumed that an act which, independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently. In the caso of Anderson against the state, 7 Ohio, part 1, 255, the plaintiff in error was indicted for uttering and publishing forged certificate of deposit, without averring his knowledge of such forgery. The statute under which the indictment was found does not, in express terms, make this knowledge a constituent of the crime. Never- ' theless, the court held that the criminality could not exist without the knowledge, and that an indictment did not aver it was defective. That case runs upon all fours with this,- and the further investigation of the principles upon which it is based confirms the court in -the conviction that it is correct. This judgment must be reversed for this cause, and it thus becomes unnecessary to decide upon -the other points, so laboriously argued for the plaintiff in error, and of a character too important in their bearing upon the whole country to be adjudicated upon without necessity.


source: Caselaw Access Project

author: Hitchcock, J.,

license: Public Domain

text:
    *Thomas H. Bailey v. Jane O. Bailey et al.
    A last ■will and testament devising lands in Ohio, if executed in a sister state, according to her laws, and probate there made, is a sufficient devise of lands in Ohio, upon its being duly recorded with the authentication of its probate in the county where the lands lie.
    This is a' suit in chancery. The case made in the bill is this: On March 9, 1828, Thomas M, Bailey, the father of the complainant, then, and up to the time of his death, residing in the county, of Accomac, and State of Virginia, made his last will according to the laws of that state; the same being in his own handwriting and without witnesses. Having so made his will, he survived until January 7, 1834, when he died; and on the 27th of the same month the said will was duly admitted to probate, in the county court for said county of Accomac; and at the May term, 1835, of the common pleas of Franklin county, Ohio, a copy of said will was admitted to record by order of said court, and was duly recorded. The testator, at the time of making his will, and up to the time of his decease, was seized of land situate in the counties of Franklin, Champaign, Madison, Clark, Delaware, Fayette, Highland, Logan, Pickaway, Ross, Union, Coshocton, and Tuscarawas, in the State of Ohio, besides real and personal estate in Virginia. By his said last will, he devises 10,000 acres of his Ohio lands to the complainant, his heirs and assigns, “his choice.”
    The object of the bill is to enable the complainant to make his selection of the lands so devised to him.
    All the defendants, being the widow, devisees, and heirs-at-law of the said testator, have answered, submitting that the prayer of the bill shall be granted, except Samuel Melvin and his wife, Elizabeth, who is one of the children and devisees of said testator, and they demur thereto.
    The case was argued at great length and with much ability by Ewing and Stanberry, for the complainant, and by Vinton, for the defendants, Melvin and wife.
   Hitchcock, J.,

delivered the opinion of the court:

This is a case of much importance to the parties interested; and in coming to a conclusion with respect to it we have found much difficulty. Its decision depends upon the construction of the statute of February 18, 1831, relating to wills (29 Ohio L. 242), in which there is no little of obscurity. It was argued at thelast term of the court, and an opinion expressed. Upon *the solicitation of counsel a rehearing was ordered, and we have again given it a careful examination.

It is a principle which can not be controverted, that the transfer of land, whether by deed or by last will and testament, must be regulated by the laws of the country where those lands are situated. With respect to personal property the rule is different. So far as it respects conveyance of lands by deed there can be no misunderstanding of our law upon the subject. A deed executed in this state, for the conveyance of land within the state, must be signed and sealed by the grantor, acknowledged in the presence of two witnesses, who shall attest the same, and acknowledged before a justice of the peace or some other proper officer. If executed in another state or country the same formalities may be pursued, or it may be executed in conformity with the law of the state or country where actually executed; and, in either event, it shall be available to pass the land intended to be conveyed. 29 Ohio L, 346. In effect, the law of the state or country where a foreign deed is executed, is adopted for the purpose of giving those deeds validity, as the law of this state. Such foreign laws, by our own legislative enactment, become parts of our law. Of course a deed executed in New York, without witnesses, for the conveyance of land in this state, would be available, because by the laws of that state no witnesses are necessary. But a deed executed in Connecticut, without witness, would be void as a conveyance here, because in Connecticut witnesses are necessary.

The policy of this law may, perhaps, be well doubted, as when foreign deeds are introduced in evidence it may be difficult to ascertain whether they had been in fact executed in conformity with the law of the state where executed, unless we presume it from the'face of the deeds themselves. Besides, its tendency is, in some measure, to create confusion and uncertainty with respect to our land titles, a consequence which ought always to be avoided. But with the policy of the law the court has nothing to do. It was introduced at an early period, and has been found in many respects convenient, and perhaps, hitherto, but few,if any evil consequences have resulted from it.

It is supposed, by the counsel for the complainant, that by a fair construction of our statute of wills, the intention of the legislature is manifest that the same principle shall prevail; and that wills made in any other state or country, according to the law of such state or country, shall be equally available for the transfer of land here as in the state or country where made; and whether *such be the proper construction of the statute is one of the questions raised by the demurrer in this case, and the one which has been principally argued by counsel. The will, under which the complainant claims, was executed in Virginia, and by the laws of that state, where the instrument is reduced to writing by the testator himself, no witnesses are .necessary. This will was reduced to writing by the testator himself, and in Virginia is available, although there are no attesting witnesses. And if the same rule is to be applied to foreign wills as to foreign deeds, then this will is good and available here.

It is proper to remark that it is not contended that in the statute of wills there is any express provision that foreign wills, executed in conformity with the laws of the state where executed, shall have the same effect in this state as if executed according to our own laws, as in the case with respect to deeds. It is only by implication that it is supposed this effect can be given to them. Nor is it even contended that any original will can be admitted to probate in this state, unless executed according to our own laws.

By the act of February 18, 1831, relating to wills,” it is provided, in section 1, “that any person having an estate in landg, tenements, or hereditaments, or any annuity, or rent charged upon or issuing out of the same, or any goods or chattels, rights, credits, and dioses in action or in' possession, and property of every description whatever, may give or devise the same to any person, by last will and testament, by him or her lawfully executed.” In section 2, it is enacted “that every such last will and testament shall be in writing, and signed by the party making the same, or by some other person in his or her presence, and by his or her express direction ; and shall be attested and subscribed in the presence of such party by two more credible witnesses, who saw the testator or testatrix subscribe, or heard him or her acknowledge the same.” Where a will is so executed, no matter where the execution takes place, it vests in the legatee or devisee the property bequeathed or devised. Nor is any difference made as to the species of property intended by the will to be transferred, whether it be real or personal. In either case it must be attested by two witnesses. The same law requires that the will so executed shall be proved in the manner therein prescribed, in the court of common pleas, in the proper county, and admitted to record; and after proof, a copy of the will, together with a certificate of probate, is made evidence.

*It is strongly urged, however, by the counsel for.the complainant that the two first sections of this act are applicable only to wills executed in this state; and they insist that the same law recognizes the validity of foreign wills if executed in conformity with the law of the state where executed. The argument to sustain this position is drawn from the phraseology of section 14 of the act. This section is in the following words: “Authenticated copies of wills, proved according to the laws of any state or territory of the United States, relative to any property within this state, may be admitted to record by the court aforesaid, in the county where such property shall be, and such authenticated copies shall be good and valid in law, in like manner as wills made in this state are declared to be.” 29 Ohio L. 245.

I admit that there is some difficulty in giving to this section, taken in connection with the other parts of the act, a construction which is entirely satisfactory. But it seems to me clearly that it was not the intention to adopt the laws of other states and territories as the law of this state, so far as respects wills made in those states or territories disposing of property in this state ; and, I apprehend, that no one would have come to this conclusion but for the provision already referred to in the act regulating the manner of executing deeds, etc. If such were the law, then, the original will itself might be produced, approved, and admitted to record, in the court of common pleas, upon proof that it was executed according to the law of the state or territory where executed. Otherwise we fall into the absurdity that a certified copy of an instrument is more valid than the instrument itself; that an instrument, void in its face for the purposes for which it was intended, becomes valid and effectual for those purposes by being first recorded in the state where executed.

Suppose the will of Thomas M. Bailey had been produced in the court of common pleas of Franklin county, and at the same time the law of Virginia showing that in that state a will without witnesses was good and valid; if reduced to writing by the testator himself, would that court, have admitted it to probate? I think there can be but one answer to this question, and that in the negative. The law under which that court, and every other in Ohio, acts, says: “ That every such last will and testament shall be in writing, and shall be attested and subscribed in the presence of such party” (the party making the will) “ by two or more credible witnesses ;” and further declares that the will shall be- proved in court by the same witnesses,unless under ^peculiar eircumstances. This provision is general, and contains no other restriction than that the property devised or bequeathed shall be in the State of Ohio. An instrument .of writing, then, although intended as a will, can not operate as such unless attested by two subscribing witnesses.

Reference has been had, in argument, to the statute of wills of January 5, 1805. 1 Chase’s Stat. 492. Section 2, of this act, provides, “that all wills and’codicils (other than such as are annulled, or revoked), legally executed arid proven out of this state, whether in the United States or elsewhere, being transferred here, and accompanied with the certificate of the proper officer or officers, that said will, or codicil, was executed and proved agreeably to the laws and usages in that state, or country, in which the same was executed and proved, and duly authenticated, shall be recorded as aforesaid, and be good and availiable in law, in like manner as wills in this state are declared to be.” There could be no doubt, that the intention of this provision of law, was to place foreign wills, executed in conformity with foreign laws, upon the same footing with domestic wills executed within the state. In truth, section 1 of the act, which prescribes the manner in which wills shall be executed, seems to be confined to wills executed in the state. It provides,that wills and codicils, in writing, within this state, by which any lands, tenements, hereditaments, goods or chattels, are devised,” etc., shall be executed in the manner in that section prescribed. Section 2 then, provides for foreign wills, in the language already quoted. These wills, if “ executed and proved agreeably to the laws and usages of that state, or country, in which the same were executed and proved,” are declared “ to be good and available in law, in like manner as wills in this stato are declared to be.” The evidence that they are thus “ executed and proved,” is to be- contained in a “certificate of the proper officer or officers.”

This act, however, was repealed by another upon the same subject, passed February 18, 1808 ; 1 Chase’s Stat. 571, and in this latter act, the clause giving effect to wills, “ executed and proved ” according to the laws of states where such wills are executed, is omitted, and a section introduced substantially the same with section 14 of our present statute of wills. In truth, the act of February 18, 1808, and our present statute, are substantially the same as to the formality with which wills shall be executed, and as to the mode of proof.

^Section 14 of the act of February 18, 1831, has already been quoted, but I repeat the quotation, “ authenticated copies of wills, proved according to the laws of any state' or territory within the United States, relative to any property within this state, may be admitted to record by the court aforesaid, in the county where such property shall be, and such authenticated copies shall be good and valid in law, in like manner as wills made in this state are declared to be.” It is the last clause of the section which is relied upon by the counsel for the complainant, as favoring the Construction they contend for; but, it seems to me, that full effect can be given to this clause without adopting that construction. But in order to arrive at the true meaning of this section, it is necessary to look at it in the connection in which it stands. The two first sections of the act, pointing out the description of property which may be bequeathed or devised, and the manner in which it may be done, have been already quoted. FI ext follows several sections, to which it is not necessary to refer, and then the manner of probate is pointed out. Section 8 provides, that after probate, a copy .certified in the manner prescribed, “shall be as effectual, in all cases, as the original will would be if produced and proven.” Proof having been once made before a judicial tribunal, so long as the order of approval made by that tribunal remains in force, it shall not be necessary again to make proof.

Section 13 enacts, that if the real estate so devised, as aforesaid, be in several counties, then such will shall be proved in manner aforesaid, in one of such counties, and a certificate of such probate shall be indorsed upon it, with the seal of the court thereunto affixed; which will, with such certificate, shall be admitttd eo record in every county in which such, lands are situated, and shall have the same validity therein, as if probate had been had thereof in each of such counties.” This section, although it requires for the security of all interested, that wills shall be recorded in each and every county where there is property to be effected by them, still proof is dispensed with, except in one of those counties. Then follows section 14. Now what was the leading motive for the adoption of this section? Uundoubtedly the same that induced the adoption of the 8th and 13th. The instrument having been once proved before a competent tribunal, although foreign, such faith and credit shall be given to the acts of that tribunal, that its certificate of authentication may be held as equivalent to proof by witnesses before the proper ^tribunal in this state. But is the nature of the instrument changed? “Authenticated copies of wills.” What is a will? In Ohio, it is an instrument “in writing, signed by the party making the same, or by some other person in his or her presence, and by his or her express direction, attested and subscribed by two or more credible witnesses,” and by which the party executing the same, makes a disposition of his or her property, to take effect after his or her death ; and in the whole statute is no o’ther will spoken of, except such as are nuncupative, unless it be.in this section. “Authenticated copies of wills” so executed, “ may be admitted to record” without producing the original itself, or the attesting witnesses; and when admitted to record, such copies “ shall be good and valid in law, in like manner as wills made in this state are declared to be.” But it by no means follows that an authenticated copy of an instrument, signed by the party, but not attested by witnesses, “ may be admitted to record” in this state, because such an instrument is a will where “executed and proved.” Under the act of 1805, a will “ executed and proved” according to the laws of the state or country where executed, would be equally available with a will executed according to the laws of this state. But under the law of 1831, it is otherwise; and, in the opinion of the court, the copy of Bailey’s will was improperly adnlitted to record; because, although the instrument might be, and in fact was, a will in Virginia, it is not a will in Ohio.

It remains to inquire into the effect of admitting the copy to record. I apprehend there can be but one opinion upon this point. The effect is thó same as if the instrument itself had been originally introduced in the court of common pleas of Franklin county, there proved and admitted to record. What, then, is the effect given to the probate of a will by the statute of Ohio ? ■

A full consideration of our several statutes upon the subject of wills, enacted at different periods since the organization of the state government, has led this court to the conclusion that no person can effectually claim title under a will, until the same shall first have been proved and admitted to record. It has been so decided at the present term of the court, in the case of the Lessee of Swazey’s Heirs v. Blackman. The same principle was held with respect to foreign wills, in the case Willson’s Executors and Abraham v. Benjamin Tappan; 6 Ohio, 172. And this may be considered as a settled rule of law.

*It being supposed, however, that wills might, in some instances, be improperly or unadvisedly approved and admitted to record, provision has been made for the manner in which, after having been admitted to record, they may be contested. The principle was first introduced in the act of February 18, 1808, “ for the proving and recording of wills and codicils,” section 9 of which act is as follows : “ That if any person interested, shall within two years afterward,” that is, two years after probate, “appear, and by his bill in chancery, contest the validity of the will, an issue shall be made up whether the writing produced, be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial for good cause, as in other trials, but if no person appear in that time, the probate shall be forever binding, saving also to •infants, married women, and persons absent from the state, or of insane mind, or in captivity, the like period after the removing of their respective disabilities.” 1 Chase’s Scat. 571. The same provision, in the identical words, has been continued in aji the subsequent statutes upon the same subject, down to the present period, with this addition, that the right of appeal has since been given to either party feeling aggrieved by the decision upon the contest, and is contained in sections 20 and 22 of the act nowin force. 29 Ohio L. 246. As the law is settled, that a will is not available to pass property until proved; and as the legislature have declared that “ the probate shall remain forever binding,” unless contested in the manner prescribed, it would seem to follow that so long as the probate remains unimpeached, ,*ny instrument recorded by order of the probate court, purporting to be a will, must be held to be available for the purposes intended to bo effected by such instrument. And such we believe to be the proper construction to be put upon our local legislation upon- the subject. This principle which is fairly deducible from our statute, is believed to be one which will be found beneficial in its results, as it will save controversies respecting wills, after the same shall have been many years proved and recorded. It will, in fact, tend to the security of titles held by devise, and can rarely, if ever, operate any essential injury.

Melvin and wife do not, in pursuance of the statute, contest the validity of the will under which the complainant claims. This they may do, if they can bring themselves within the saving *clause of the statute, and upon such contest the question will arise, which has been so fully and ably argued by counsel, whether a will executed in a foreign state, according to the laws of that state, but not in conformity with the laws of this, is available for the transfer of property in this state. They are now attempting to impeach the validity of this will, the probate remaining in full force. They are attempting to do that indirectly, which the statute provides shall be done directly. In the opinion of the court, this can not be done consistently with the law under which we act, and by which our decision must be governed. There can be no more propriety in sustaining their defense in this case, than there would be if it was based upon the ground that the testator was of unsound mind and memory.

It may be said, however, that inasmuch as the fact appears upon the face of the bill of complaint, that this will was not executed in conformity with our law, therefore, the court may with propriety treat it as no will. Such in the first instance was the opinion of the court. But upon further reflection we have arrived at a different conclusion. The act of approval and ordering to record, by the court of common pleas, is a judicial act. And as the legislature have declared the effect of that act, unless the same shall be impeached within a specified time, and in the prescribed form, we entertain the opinion that it can not be impeached after that time, nor in any other form. A deed informally executed, can not operate as a conveyance, although recorded. The recording is not necessary to the validity of a deed, and it is a mere ministerial act. But the probate of a will is necessary to give it full effect It is a judicial proceeding, and must be set aside in the manner provided. Unless so set aside, it “ shall be forever binding.”

The demurrer is overruled, and the complainant may take a decree.


author: Judge Lane

text:
    *Ebenezer Matoon v. The Heirs and Administrators of Amasa Clapp, deceased, et al., and Cole & Field.
    In a bill in chancery to subject an equitable interest in lands to the payment of a debt due from a security in a bond, a judgment at law in favor of the obligee against such surety, is prima facie evidence that the bond was made and the condition broken.
    The admission of an administrator is prima' evidence of the indebtedness of the estate he represents, in any particular case of 'admission.
    A judgment in favor of an administrator defendant, in a court of the State of Massachusetts, upon a plea of the statute of limitations of that state, is no bar to a bill in equity in Ohio, between the same parties, seeking to subject after discovered property of the decedent to the payment of the debt.
    A decree'to marshal descended lands for the payment of debts, can only be made where the demand of such marshaling is made in the pleadings, 30 as to present a case for proof at the hearing.
    This is a bill in chancery reserved in the county of Geauga.
    The following facts appear upon the bill, answers, and testimony.
    In 1799, the plaintiff was the sheriff of the county of Hampshire, in the State of Massachusetts. He appointed Thomas Kidd a deputy, who gave him a bond of indemnity, with Amasa Clapp and Charles Kidd his sureties. Clapp died in 1804, and the administration of his estate was committed to Solomon Clapp and A. Rice. Kidd having failed to pay over moneys collected, a suit was instituted, in 1807, against the surviving obligors of the bond, and a judgment for the penalty was rendered by the supreme judicial court of Massachusetts, in 1810, with leave to take out execution for the sum of $1,528.48. In 1815, no satisfaction having been obtained upon this judgment, and the defendants to it being insolvent, proceedings, conformably with the law of Massachusetts, were instituted against the administrators of Amasa Clapp, for their liability upon the bond. The defendants pleaded the Massachusetts statute of limitations. This suit was referred to arbitrators to decide, who found in their award that the claim was barred by the statute of limitations; upon this report, judgment was entered for the defendants.
    By the statute of limitations of Massachusetts, no claim can be enforced against an administrator, unless it shall be presented within four years from the date of administration, except only where the creditor has failed to present his claim, and shall sub' sequently find property unadministered upon. The plaintiff avers, that he was ignorant of Kidd’s delinquency until 1807, and he then supposed the surviving obligors of the bond able to respond the amount, and that he pursued the claim against Clapp’s estate, as soon as he found he could not otherwise obtain payment.
    When Amasa Clapp died, he held an equitable title to about 1,000 acres of land in the county of Geauga. This interest is not noticed by the administrators, in their administration account, although the estate is shown to be insolvent. In 1805, Lord, the trustee of the legal title, conveyed this land, together with sundry other tracts of land in Portage and Medina counties, to Salma *Clapp and Alvin Eice, the administrators of Amasa Clapp, in trust for the benefit of the estate of Amasa Clapp. This deed was not recorded until 1810. The plaintiff avers, that he was ignorant of this property until 1822 ; that he proceeded as early as convenient to assert his claim ; he procured the appointment of TJ. Seely, an administrator de bonis non, etc., in 1827, to whom the claim was presented and allowed. The defendants, Cole and Field, have purchased the land, and this bill is brought against all parties in interest, seeking satisfaction of the balance of the judgment, by a sale.
    This suit was instituted in 1829. In December, 1835, it was heard before this court, in bank, on a general demurrer, but by accident, was not reported. It stand’s now for hearing, upon the answer of Cole, which demands proof of the existence of the debt, denies that the admissions of Seely (who has been removed from his administratorship), are binding upon him, and asserts that he purchased for an adequate consideration, without any “certain knowledge” of the bond, or “any certain information,” that Kidd was a deputy, etc., or that “ he had, at the time of his purchase, or that he has yet obtained any knowledge that complainant had, or now has, any claim against the estate of said Clapp.”
    E. Hitoi-ioock and Webb, for the complainant.
    J. H. Paine, J. O. and B. T. Wright, for defendants.
   Judge Lane

delivered the opinion of the court:

The pursuit of the plaintiff’s rights in equity is admissible, as well because he seeks to subject to the payment of debts, the estate of a deceased obligor, as because that debtor hald only an equitable title to land, which can not be brought to a suit sale except under a decree. 6 Ohio, 233.

The liability of Amasa Clapp’s estate must be shown by satisfactory proof. The record from Massachusetts is prima facie evidence that the bond was made by Thomas and Charles Kidd, and that its condition was broken by Thomas Kidd, by which the plaintiff was damnified, to the extent of the judgment. 3 Ohio, 487, 225 ; 2 Ib. 355; 4 Ib. 104. The admissions of Seely, the administrator, are prima facie evidence of the liability of the estate of A. Clapp; he is a necessary party to such a suit, 5 Ohio 555, for *the purpose of admitting or contesting the debt, and representing the interests of the estate. His acts are not conclusive; but creditors are not required to go behind them, unless fraud or mistake is shown them.

The point most strenuously insisted upon is, that the judgment in Massachusetts, in 1815, forms a bar to all further proceedings. This defense does not consist in the statute of limitations, as applicable to this action ; nor in the antiquity of the claim, which under some circumstances furnishes evidence of payment; but in the position that a judgment has been rendered, upon the merits in a suit between these parties, which concludes their rights. Whether a judgment on a plea of the statute of limitations is a judgment on the merits, and binding on the parties, beyond the territorial operation of the statute, is a'qu6Stion which is not discussed, nor will it be now decided; it is intended at present, to give to the judgment the same effect it would produce in Massachusetts. Adverting to the statutes of that state, as furnishing the law of the case, we find administrators well protected from suits, on claims not presented within four years, except upon one contingency, viz., the discovery of other property, which had not then happened. The statute of limitations being a complete bar, not to the right, but to the remedy, in the state of things then existing, judgment was rightly given for the defendants. But had un ad ministered property been afterward found in Massachusetts, new relations would have intervened between the parties, under the exception, removing the restriction and conferring, as it were, a new right of action. The record shows, that by the adjudication of that tribunal, no right of action then subsisted; whether the right has been restored, by the occurrence of other facts since that judgment, is a question which has never been submitted to a court. We think, then, that this former judgment would have been no bar to this claim, in the State of Massachusetts, if the property not administered upon had been found there, and it will possess no higher force in our tribunals.

The defendant, Cole, insists that the land yet remaining in the hands of the heirs shall be first held for this debt. The right is well established, in a proper case. 6 Ohio, 238. But this privilege of marshaling descended lands is a distinct and affirmative claim, to be brought forward by the defendant, and plainly established by proof. This point is not made in the answer, but is suggested in argument only. Although other lands are referred to in *the bill, it nowhere appears what lands, of what value, or whether unsold. It would be hardly proper to postpone the plaintiff further, unless the right to impose the burden elsewhere were more clearly shown.

The defendants, Cole and Fields, claim to be purchasers, for a valuable consideration, without notice. Without adverting to the very guarded terms, in which notice is denied, or the want of averment of the payment of the full consideration, and without examining the proof, which seems to show express notice, it appears to us that the terms of the deed, from Lord, to the administrators, through which they must trace their title, are enough to charge them. 4 Ohio, 458.

Decree for plaintiff.