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real estate, Abe application could on- 1
Jy lie made to Courts of common law
for redress. The argument would
be good iu England, where under
the doctrine of primogeniture, espe
cial favor is shown, to the rights of
the heir at law by the Courts oi Com
mon law, In this State, that prin
ciple is exploded, A, real &. personal
estates are put on the same footing,
in almost all respects, if not by ex
press stiitntmmjimvisiori, by reason
ing easily dcduciblc from
such statutory provision-. It was
contended with great earnestness in
the argument, (and one ground of
the motion is predicated on thufcideu,)
that a Court of Equity is tfe only
Court to which application cotild be
triude,
t Hut When the Equity nooks
come to he examined, “tin exactly
different doctrine scents to be well
established. I am of opinion that
the utmost extent to which a Court
of Ecmj||L iu cases of this kind can
go to afford no relief to
one clflßfcig iu that Court, under
such a fraud, or, to constitute the
executor or fraudulent legatee, a
Trustee, for those who may bo e
i)uitubly and justly entitled.
If then neither the Courts of Com
mon Law, or Equity can be npplied
t'o in the iii st instance, it seems to
follow conclusively, that the Courts
of Ordinary in this State, ure the
only Courts to which the.application
Can be made, and I conceive that this
conclusion is wall supported, both by
the- English Law and our Statutes.
Our Courts of Ordinary, as regard
wills and testaments, bear a strong
analogy to the Ecclesiastical Courts
of England. Their jurisdiction is al
most identical except us regards re
alty ia England; and I have already
Stated that I consider that distincti
on prevailing between real and per
sonal estates, in this respect, as a
bolishcil in Georgia,
That the application would be
made, and could only be made iu
flight ml, to the ecclesiastical Courts, j
in such a ease, to vacate the probate,
and revoke the letters tcstauientory
of .of administration, I think abun
dantly shown not only from the au
thorities referred to, but many
others. |
Hut if any doubt existed on the.
Subject from the English authorities, !
I consider the point settled by the
Statutory Law of this State. lsy me
act ot 16th February, 1701), (Prince.
151),) “the Inferior Courts of- each
county, have full jurisdiction and au
thority to hear and determine all !
causes, matters, suits, and controver- :
suss, testamentary, Ac.”—and lert
the act of 15th December, I8l4,;
(Prince, 168) the same Co.uit, Si ting 1
as a Court for Ordinary purposes,!
are vested with “original jurisdiction >
of all testate and intestate estates,!
Ac. arid all such other matters and
things as appertain and relate to es-j
tates of deceased ftersons whether j
testate or intestate.
Now aS according?** the principles i
| have assumed, that which has been
fraudulently or illegally admitted to ;
probate as a man’s w ill ought not to <
1 be admitted to be executed as such
when the fraud or illegality is made
apparent, ahd any proceeding to va
cate the probate presents a “cause,!
irfattcr, suit or controvcrsey testa- j
metitary,” and is a matter, or thing!
relating to the estate of a deceased j
person, such proceedings under these j
acts must be commenced in the In- j
ferior Court sitting for Ordinary {
purposes, and no where else- lam j
•therefore of opinion that the proceed- !
•jug in this ease to vaeate live probate- i
tis Jessellolloway’s will, was property j
com meaced hi t he Court of Ordinary,
•ami that it was well commenced by
{notion and citation to the ad nun is-’
Iratord.c bonis non Ac. containing
the grounds oh which the application
was made.
It is urged however that tins will
•was proved in solemn form, and that
‘bciriif so proved, the .probate is final
and conclusive. This conclusion
■would hypo means follow, were the
point conceded, that the will was
‘proved in solemn Jorm. According
to the English rioctriurs on this sub
ject, even after such a probate, seven
•years are allowed, within which to
enter an appeal, to contest tiie valid
ity of the will and to vacate the pro
bate if my memory is correct as to an
authority lead (Toller,) which I have
uot before-me.
But is it true that this will was
proved in solemn form? The truth
Atk 324 and cases referred to in note.
i Toller.73 and 76 2 ‘Rob. on wills, Vniin p. 60
*o 69,.2 Bac. Ab. m
is, this distinction between solemn and
common form, does not appear to he
preserved in practice in tiiis State.
I know of no instance in which a will
has been admitted to probate, on the
oath of the Executor merely. In
deed the common form in practice in
this State, is to introduce one or more
of the witnesses to the will, and to
take their affidavit as to the executi
on of it by tlrb Testator, as wasdone
in this case. But there is one re
quisite to constitute the probate in
this case, a solemn one, which it is
not pretended was ever given, to
wit, “the citation of all the parties
concerned or in interest. It cannot
therefore be said that the will proved
was in solemn form.
And While upon this branch of the
subject, I will venture to express this
opinion, that in no case should the
probate of a will be held final and
conclusive to all the world, under our
saysteni, but in cases of final Contest
bv caveat, or therwise, in which the
i specific grounds on which the will is
sought to he invalidated in whole oi
| in part have been litigated or adjudi
| cated. And bore 1 do not wish to
be understood to say that the probate
of a will in the Court of Ordinary is
not, and ought not, to be conclusive
iu any other Court, such as a Court
of Common Law or Equity, because
of this there cun be no doubt, until it
is repealed by the Court of Ordinary ;j|
but thiq it should uot he held conclu
sive and final, but Under the circum
stances stated in the Court of Ordi
nary itself, on a proceeding to repeal
the probate. I avail myself of this
branch of the subject, to notice an
authority read by Counsel lor the
Administrator from Bth Crunch, p.
25. It is in those words “Letters of
Administration where once granted
are not revocable by the Ordinary,
—he cannot atueiid them, or trans
fer the legal interest of the Executor
to any other person. His rights and
his duties are beyond the reach of the
Ordinary. ’’
In the particular casein which
this opinion w is expressed, by the
Supreme Coun of the United States,
perhaps no so'id objection could be
urged, to the doctrines thus broadly
and generally asserted.
But if the doctrines was intended
to apply to all Cases whatsoever, I
venture humbly to express the opin
ion, that it is not law. All the au
thorities which I have quoted, anil
many others coaid lie added, and
which are referred to in those cited,
beyond doubt, establish the principle
that in a proper manner, and for a
k proper cause, the probate of a will
may be repealed and the letters tes
tamentary be l evoked by the Ordi
nary, and that no other jurisdiction
can legally do it.
There is no solidity in the fourth
ground on which anew trial is sought.
I arn of opinion that the Court did
not err hi permitting the introducti
on of the evidence"of the witnesses
to the will for the purpose not indeed
of varying the will, hut for the pur
pose of shewing what that will was,
and that words not directed by him
were interpolated between the times
of writing and execution, without his
knowledge oi approbation. There
may tie eases in which the testimony
of the subscribing witnesses is ad
mitted § with great reluctance a
gajiist their own attestation, hut the
competency of such cannot now he
questioned. Equally unfounded is
the sixth ground. The ■Court did
not err in permitting evidence of the
declarations of the testator after’
making his will. They are admis
sible, though with great caution and
discrimination.^)
Had I presided, perhaps I should
ntrt haye admitted the inference or
understandings of Mr. Stanly from’
what the testator said, to have been
given in evidence. Bat that infer
ence or understanding appears to
me to be so obvious from the words
of the Testator, that I do not con
ceive its admission should yitiate the
verdict.
There is also nothing in the last
ground of the motion. The verdict
in my opinion is well sustained by
the evidence on which it svas founded,
The only remaining ground to he
discussed is thart qf charging the
■Court with error in not granting a
continuance, to Defendant, “*vhea be
stated under oath that although he
knew certain facts could be proved,’
yet lie did not know of their raateri-
H 2 Rob. on wills, 60 and 61.
$1 Rob. on wills, 138. Ib. 140.
ii 2 Hub. ip wills 30. /b. 40, •fils,- 7- re ,
510, fcc.
alify until it was tub late to obtain
the evidence.”
I am not furnished with the oath
of the Defendant stated to have been
made, or with any evidence of the
certain facts that could be proved,
or the names of the witnesses by
whom they could be proved, or how
it happened that the Defendant did
not know of their materiality until it
was too late to procure the evidence.
In this state of utter darkness upon
all these points, I cannot think it pro
per to grunt anew triul on this
ground.
The affidavit of the party himself
should have been reduced towritting,
stilting all these matters at tlib time
of making the. motion, and the affi
davit of the witnesses stilting vvliat
they could prove should have been
introduced on the argument. But
us the motion was made before ano
ther Judge who might not have
deemed these formajities necessary,
I will suspend an opinion on this
point for two months from this date,
so that I may be furnished with this
affidavit'of- the Defendant, shewing
the facts to be proved, the names of
the witnesses atpl how it happened
that he did not know the materiality
of the evidence; and also the affida
vits of the witnesses themselves con
taining what they will swear to.—
Copies of these affidavits must he
served on counsel for Phillips, 20
days before the expiration of the 2
months) and an argument on paper
from both sides will be received, and
considered, 22d May, 1829.
Second Order in the abittie Case will appear in our
next.
Extracts from Foreign Papers <
PRESIDENT'S to ESSAGE.
\V c must say, that since the lime
of W ishingtoii we have not seen n
uy official communication from the
First Magistrate of the U. S., con
taining, together with so much that
was interesting and valuable, so lit
tle that was objectionable to a state
ment, oimilfeusive to men of right
feeling anti good taste. Asa politi
cal composition, the Message of the
Btli tilt, is chumcteuistic ot the quali
ties which have Usually been ascrib
ed to Gen. Jackson. It is shrewd,
decided and perfectly, uncompromis
ing, with more of that soit ofdignity
which belongs to moderation of iau
llnv.l 5,..•.•.111
Imps have anticiiuted from the vete
ran soldier. Get. Jackson, does not
(shrink from a efiar and siraighUm
| u artl representation of the bearings
j of any questkmjvhich he is officially
called ujkui to notice; iku from any
voluntary discussion of one or more
(rebating chiefly to internal polities)
of which the proposition might, by
! persons ofu more indirect character,
have been left as a task for others.
\V earc sure that there is no good
or intelligent Englishman who will
not go Ins full half way to meet ihe
proffered friendship of tiie American
citizen ; and yve believe in the grow
ing persuasion amongst us, that none
but madmen here or in America, will
wantonly risk an interruption of that
precious harmony Times.
We contess we have read this state
paper with mingled feelings of toufi
row, at the lamentable contrast prm
sented by the situation of our own
country: exultation, that there arc
twelve millions of Englishmen and
the dceendants of Englishmen, in the
enjoyment of nil the blessings of a
government proceeding from, direc
ted by, and ruling for the peojjJ.e.’
J I he people of America ure happy,
pious, and rich, without an aristocra
cy and without corn laws or game
laws, without an established church’
and tithes, and without compromis
ing any piifilie interests at home, ,or
sacrificing their station among other
nations abroad. —Liverpool Chron.
liis language in regard to the In
dian tribes, discovers equal conside
ration and sympathy, and, when tqk
en iu connexion with the general
moderation of ihe speech, and more
particularly its tone of amity towards
tins country,- it affords a striking
proof of thehazard of form mg a judg*
inept of a public man, from popular
rumor. When tin* election to the
presidency was in progress, the year
before last, the newspapers of many
of the Skates depicted Gen. Jackson
as little better than a political tire
brand * as a, man who, on attaining
power, would-foster the worst preju
dices of his countrymen, and urge
points of a nature to plunge his coun
try into wai;, Such was tke current
report in regard to one whose ad- 1
vanced years conveyed to us, at tile
time, a very different impression;
and who now appears to be a worth
y successor to Washington, in pa
cific and enlightened policy.
London Courier.
COMCaESSIOWAL.
February, 25.
Mr. VINTON moved the following.
Ordered, That a law of the State
of Georgia, and a law of tlio State
of Alabama, and Mississippi, to ex
tend the jurisdiction of tlmso States
over the Indian Tribes within their
respective territorial limits, be print
ed and appended to the report of'tlie
Committee on Indian-Affairs, direc
ted yesterday to be printed.
Mr. LUMPKIN said* the motiou
of the member from Ohio, was novel
and of an extraordinary character,
and he hoped would not receive the
countenance and support of the
House.
A standing committee of this
House, detailed for the express pur
pose of performing certain duties
confided to them, had to the best of
their ability performed that duty:
and Submitted to the House the re
sult of their labors. And the House
on yesterday voted that ten thousand
copies of their report should be prin
ted, with a view of laying before the
country extensively, what scemed.to
be considered a subject of great im
portance and deep interest.
The member from Ohio seemed
to havearrived at the conclusion that
the report of the committee required
amendment, and therefore proposed
an appendage of the laws of Georgia
and Alabama, upon the Indian sub
ject—with equal propriety he might
have added the laws of New York,
Massachusetts and the other States
of New England. If the gentleman
had bestowed as much labor on the
subject as the committee has, he
would have dsbeitaincd that Georgia
nliU Alabama were not the only
j States alio have extended their ju
| risdiction over the Indians within
their limits, lie would not claim for
the committee any extraordinary re
spect from this house; but he felt
confident this indirect censure would
not he permitted to be cast Upon the
committee, before they hud been
heard. Let tlie report, unincumber
ed with irrelevant matter, speuk for
itself. Let the committee lie lienrU
according to their own views of'pie
senting tiie subject—then, and not
til! then, will the candid and intelli
gent be aide to form correct opinions,
lie would not remark further upon
the extraordinary proposition of the
gentleman from Ohio. He would
look to the House with confidence to
sustain itself, in doing which, the re
port of the committee could not, at
this stage, receive any appendage.
Mr.GOODENO\Vsaid he did not
rise to enter into the debate,
but mearly to make a few remarks
with regard to the propriety of adopt
ing the motion made by his colleague,
{Mr. Vinton) whose suggestion—
that peradventure the committee
may not have made fair inferences
from Ihe laws of the State by them
quoted or referred to ; and therefore
we ought to append to their report
those laws—tends to cast suspicion
upon the committee and their report,
and weaken its effect. To adopt
this motion would be setting a pre
cedent improvident, to say die least
of it. When a respectable standing
committee of this House make a re
port upon a subject referred to them,
and illustrates their views by refer
ences or extracts from the laws of the
States of die i J jiion, why suspect their
integrity, or their commentaries at
the threshold, before aay examina
tion of that report is made, before in
accurate, quotation is detected, before
any erroneous conclusion or interfer
ence is exposed. Wo refer matters,
submitted to t.he decision of this
House, do a committee always sup
posed to be in favor of the subject re
ferred who are expected to present
in their report a fair, and usually the
most favorable view of it; A without
knowing whether ‘Jiev have honestly
A ingeniously examined and made
a full and impartial exposition of it
why should we censure them, by tack
ing toibeir report, that which they
did not consider necessary to accom
pany it. The opositiou to the report
iu its present form, seeuis to rest on
the suggestion that perhaps the laws
ought now to he incorporated at lame
in the printing of the report which
may lie inaccurately quoted, or an
•Ml-. L. was tho first (feat opposed M r . y, N .
top>s iuouor, * TW
unfair exposition thereof tnay.fiavfl 1
been made. When the gbntlemau
sliull hnvedeteeted any misquotation
or error in commentory, then .will the
time come for the House to act upon
his proposition. I hope my col
league will see, on reflection, that it
would be sitting a bad precedent, to
say by a solemn act of the House,
before any inaccuracy or errorbe de
’ tected in a report of a respectable
1 committee least it may contain ar>
1 erroneous commentary, the original .
text shall be published and appended
to it. I wish the report to go to. the
world trs the committee have given
it to us, unincumbered by any extra
neous matter ; and I do hope, on fur'J
ther reflection, my colleague, (Mr/
Vinton) will perceive the impropri
ety of urging his motion.
Mr. FOSTER, of Georgia, said
he did not intend to complain of the
resolution proposed ; he must, how
ever, he permitted to say it was one
of a very extraordinary character,
lie would venture to say, that if the
Journals of the House from the orga
nization of this Government down to
the present day, were searched, a
proposition to print the laws of a
particular State, for the information
of the people at large, could not he
found. The House frequently, and
for the uso of its own members, on
particular occasions, ordered tho
printing if a State law, but to publish
them for general information, is un
precedented. But, said Mr. E. what
is the reason assigned for the passago
of this resolution? It is that tho
people at large may be correctly in
formed as to tlw provisions of thd
laws Which are to operate on the In
dians. Now, Sir, what object is to
I/O thus attained/ What effect Cut*
the particular provisions of those laws
have on the question ot the light of
jurisdiction f If the States have the
right to extend the operation of their
laws over the indians within their li
mits, the generul Government can
not interfere even if those laws be of
the most cruel sanguinary character.
On the contrary, if they have not the
right, they could not acquire it by
the enactment of laws the most mild
and benignant. lie did not intend,
at present, to go into an examination
of this right—that would more pro
perly present itself on a future occa
sion—he wished now merely to im
press upon the House that tho tctH
<>i‘ ibi resolution was. to in
volve us in a decision as to the cha
racter ot State Jaws, the internal re
gulations of a State—a matter w tb
which Congress cannot interfere.
But if gentlemen are determined to
publish the laws of Georgia, Alaba- •
mu and Mississippi, for the purpose of
informing the public at large of theif •
provisions, Mr. F. insisted on attach- .
ing to them tho laws of all other i
States which have extended the ope
ration of their laws over the Indiana
within their limits. If those three
States are to be put on trial before
the country, let others similarly sit
uated be brought to the same tribu
nal- Let them undergo a general,
inspection—place the different stat
utes of each side by side, and let the
public have an opportunity of judging
impartially between them. For this
purpose, Mr. F. had prepared a sub
stitute for the resolution of the gen
tleman from Ohio, (Mr. Vinton)
■which lit: would presently send to tho
chair. But he protested against
having these lews attached to the re
port of the Committee on Indian Af
faire. 1 lie printing of the report,
had already been ordered, and he
wished to have it before the public
as spon us possible ; but if these laws
are to accompany it, ctfngiberable’
delay must he produced. He hop
ed, therefore, that if the House de
termined to publish these State laws
at all, it would accept of his substi
tute, and print them separately from
the repott. For himself, Mr. F.
said, lie w ould candidly add that even
should the substitute be received, h<j
should ultimately vote against its
passage, conceiving it not only unne
cessary, hut improper for this House
tb undertake to publish the laws of
the States, lor the information of the
public,
. Mr Foster, then Submitted u
substitute for die resolution of Mr.
Vinton.
Central Bank.— By u reference to our adver
tising columns, it will fie seen by our readers at
wliat time, this institution will loau money to the
several counties, on acrummodatien paper. Those
who wish notes offered, and canuot couveiit,iujy
attend, by enclosing there notes and certificates,
and-$2 to- cOverVfltpcnses, ngl be waned.on Jy
Jf Patriot^