ADAMS V. NORRIS, 64 U. S. 353 (1859)

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U.S. Supreme Court

Adams v. Norris, 64 U.S. 23 How. 353 353 (1859)

Adams v. Norris

64 U.S. (23 How.) 353


In California, where a will with its codicils was offered in evidence, the testator of which died in 1818, an objection to its admission because it had never been admitted to probate was not well founded. The codicil was not inadmissible as testimony on that account.

Neither was it inadmissible because the witnesses who were present at its execution had never been examined to establish it as an authentic act.

An objection to the admission of the codicil because it does not appear on the face of the instrument that the witnesses were present during the whole time

Page 64 U. S. 354

of the execution of the will and heard and understood the dispositions it contained was not well founded.

Cases cited to establish this point.

It was proper in the court to allow evidence to go to the jury of a custom in California as to the manner of making wills, and to instruct them that the evidence was competent and that if the custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, it will operate to repeal the prior law.

The Spanish law upon this point examined and also the decisions of the state courts in California.

It was proper in the court to instruct the jury that the testator and witnesses should alike hear and understand the testament and that, under these conditions, its publication as the will of the testator should be made.

With regard to the proof of the will, as all the witnesses were dead, evidence of their signatures and that of the testator was admissible, and also of a declaration by him that he had made a will with a similar devise. The sindico who attested it should be counted among the witnesses.

The binding force and legal operation of the codicil are to be determined by the law as it existed when the codicil was made. But the mode in which it should be submitted to the court and jury, and the effect to be given to the testimony that accompanied it, depend upon the law of the forum at the time of trial. It was a proper question to be submitted to the jury whether, under the circumstances of the case, it was probable the formalities required by law were complied with.

This was an ejectment brought by Adams and Grimes, citizens of Massachusetts, against De Cook and Norris, to recover a rancho in California. The amended complaint reduced the parties to Adams, plaintiff, against Norris, defendant.

Adams claimed, as representing the heirs at law of one Eliab Grimes and Norris under a codicil to the will of Grimes. The question therefore was whether the will should stand.

Grimes, who was a Mexican citizen by naturalization, made a codicil to his will in 1845 by which he devised the rancho to his nephew, Hiram Grimes, under whom Norris claimed. The codicil was signed by himself and executed

"before me, in the absence of the two alcaldes."





Page 64 U. S. 355

Upon the trial, the plaintiff made out his title, when the defendant offered the original will and codicil in evidence, the will never having been probated.

The witnesses were all dead. Hinckley died in 1846, Spear in the fall of 1849, and Ridley in April, 1852. Grimes, the testator, died in November, 1848.

The first exception was as follows:

The plaintiff admitted the genuineness of the signatures to the documents A and B, and they were given in evidence without objection, but the plaintiff objected to the admissibility of document C upon the following grounds:

First. Because a paper offered in evidence as a will or codicil without probate, and which has never been duly probated, cannot be admitted in evidence for want of such probate and does not become a will until probated.

Second. Because the courts of the United States have no probate jurisdiction, and no document or paper purporting to be a will can be probated in any court of the United States.

The court overruled the said objections and admitted the said document to be given in evidence and permitted the defendant to offer proof of the execution of said document, the same not having been admitted to probate by any probate or other court.

The complainant then and there immediately excepted to the ruling of the court, and the exception was then and there allowed.

It would be tedious to follow the trial through the numerous points made, prayers to the court, and rulings thereon, and unnecessary because the substance of them is stated in the opinion of the Court. The jury found for the defendant, and the plaintiff brought the case up to this Court.

Page 64 U. S. 356

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