#### John Den ex dem. of Bathsheba Sumner et al. v. Asa Roberts,

From Perquimons.

Dec. 1830.

The probate of a will ought regularly to appear upon the minutes ot the Cou'ity Court, and the will itself ought to be recorded.

Although the certificate of the Clerk on the will itself, has been commonly received as sufficient, yet if this certificate be made and signed by the deputy, it is not a legal probate, and the fact that the original is on the files of the Court will not aid it. in this State, docs any length of time dispense with the necessity' of a probate — Qit ?

Ejectment tried before his Honor Judge Nouwoon. The lessors of the Plaintiff claimed title as heirs at law of Josiah Sumner. The Defendant claimed under James Sumner, who was the heir at law and devisee of Seth Sumner. Seth Sumner had devised the premises in dispute to his son James, but in case he should die without issue, to Josiah Sumner, the ancestor of the lessors of the Plaintiff; and the contingency'having happened in the year 1824, the only question was, whether the will of Seth Sumner had been properly proved. Upon this point, the Plaintiff offered in evidence, a copy of it upon which was endorsed the following certificate :

“ Perquimans County Cauri.- 7 “ April Term, 1787. ?

“ The last Will and Testament of Seth Sumner, late of said “ County, deceased, was exhibited and duly proved in open Court, “by the affirmation oí Abner Pierce, one of the subscribing wil- “ nesses thereto; and at the sume time appeared James Sumner, one “ of the executors therein named, and qualified according to law.

“ J. HARVEY, Deputy Clerk.”

The Clerk of the County Court produced the original, and proved that he found it in the files of his office. Upon the original was a certificate, in all respects similar to that upon the copy offered by the Plaintiff. His Honor thinking that the above mentioned facts did net in law *528amount to a probate of the will, nonsuited the Plaintiff, -vyjjQ appealed, * *

Tiie case was submitted wiihout argument, by Gaston^ for the Plaintiff, and Hogg, for the Bifendant.

Ruffin, Judge.

If in any case, in this State, the age of a will dispenses with the. necessi'y of proving it, that rule cannot apply here, because the devisee, was heir at law of the testator, and his possession is consequently consistent with either title.

The question then turns entirely on the sufficiency of the evidence of probate. The act of ;777 (Rev. c- 115 s. 57,) enacts, that the County Courts may lake probate of wills, and order them to be recorded in proper books to be kept for that purpose. The act of 1784 (Rev. c. 225 s. 6,) enacts, that Ibe probate of a will shall be sufficient evidence of a devisee, and that attested copies of such wills, or the records thereof,by theproper officer may be given in evidence, as the original might. It must, therefore appear that the will has been proved. This can only be done by tiie records of the Court. The original being on file is no evidence, that it, was proved. It might have been barely deposited by the executor; or oa-veatod, and adjudged to be no will. The certificate of the Clerk on t >e will itself, has commonly been received as evidence of the probate, bemuse be is the *'4 proper officer” to attest, the acts of the Court. But regularly, it ought to appear by (he minutes of the Court how it was proved, and the order for recording; and it ought to be recorded. If itd'd so appear on the minutes, or if it were recorded in the book of wills, those records would make the proper evidence, heeau e these records are the acts of the Court — by whose hand soever the Court may have caused the facts to be set down. But in the present case, it doth not appear that atiy order Whatever was made on the record or minutes of orders *529of the Court, nor that tlie paper itself has been recorded. It must he presumed, that the party did pot offer such evidence, because it does not exist; and the inference therefrom is very strong, that no probate was, in fact, adjudged by the Court. The certificate alone of a deputy Clerk irt his own name is altogether insufficient evidence. He cannot attest the records of the Court, nor certify its acts. The original paper being among the archives of the Clerk’s office does not establish its probate. Its identity perhaps may be inferred from the certificate of the Clerk; but much more certainly, and also the probate of it from the record of it. In the absence of such record, and any minutes of the probate, it cannot be received in evidence. The certificate on it is a nullity, unless it appear that the principal had died ; in which case by the act of 1777 {Rev. c. 115 s. 86) the deputy becomes Clerk. The judgment is therefore affirmed.

Per Curiam. — Let the judgment of the Court below be affirmed.