Emory's v. Thompson's 2 H. & J. 244

Emory’s Adm’r. D. B. N. vs. Thompson’s Ex’x.

A copy of a pa? per, purporting to be' an additional inventory to the inventory of the «state of the deceased, certified und^r the hand and. seal of the Register tf Wills to be a true copy taken from the original additional inventory offered, {not- proved.) by the,administrator, and lodged in the office of the register — Held not to be competent evidence to charge the administrator with the amount of the goods and chattels therein mentioned, ,

An original paper, purporting to be an “additional inventory to the inventory of the deceased, offered by the administrator,” proved to be in the haml--wvai.bg of a person who acted .is a clerk for the administrator,'and endorsed “additional inventory,” in'Jjlie Ipuul-writiiigof the administrator* found among thej paper’s in the office of the register of wills, wrapped „y|> in the original inventory of the estate of the deceased — Held to be competent evidence to charge the administrator with the several sums of money specified in the raid paper, as pan of che goods and chattels of the deceased.

Appeal from the General Court. The Appellant brought an action of debt upon the administration bond of Ezekiel. *245Forman, (who was administrator with the will annexed of Sarah Emory) agaiust the executrix of John Thompson, who was the security of Forman in the said administration bond. The defendant (now appellee,) pleaded performance, specially, and the plaintiff replied nonperformance, stating a bequest by Sarah Emory to the plaintiff’s intestate, of sundry parts of her personal estate, which had been be queathed to her by hep deceased husband, over and above her thirds; that after paying the debts, &c. there remained a residuum of ;G1000 current money, &c. Eejoinder, that after paying debts, &c. there did not remain of the estate, &c. any residue, but that the whole estate was paid away in payments of debts, &c. Issue joined.

'J. At tlie trial at September term 180S, the plaintiff, having given in evidence a copy of the inventory of certain goods and chattels of Sarah Emory, thetj offered an official copy of a certain paper, purporting to be an additional inventory to the inventory of her estate, and certified under the hand and seal of the register of wills in and for QueenJlnne’s county, as evidence to charge Ezekiel Forman, in his capacity of administrator of Sarah Emory, with the several sums of money therein ’specified, as part of the chattels, rights and credits, of Sarah Emory. The certificate was thus: “Additionál'ifiventory to the inventory of Mrs. Sarah Emory’s estate, offered by Ezekiel Forman the administrator.” [Herefollow the articles, i^c.j rylancl, Queen Jlnne’s county, to wit: I do hereby certify, that the above and foregoing instrument of writing is a true and perfect copy, as copied from the original additional inventory of Sarah Emory, offered by Ezekiel Forman administrator, and lodged in my office.' In testimony,” &c. Signed by the present register the 16th of JJugust 1803. The defendant objected to the certificate, and contended that the same was not competent evidence in law to charge Ezekiel Forman with the amount of chattels and credits therein mentioned, as proposed by the plaintiff, or with any part thereof. And the court, [Chase, Cli. J. Hone, and Sprigg, J.] sustained the objection. The plaintiff excepted.

2. The plaintiff, having given in evidence a copy of the inventory of certain goods and chattels of Sarah Emory, then produced two certain original papers in writing, as *246follow, to wit: A. “Additional inventory to the invente? ry of Mrs. Sarah Emory’s, estate, offered by Ezekiel For-man, the administrator.’* [Here follow the articles.] B* “Except the bonds due to the estate, the crop of wheat and tobacco, and. the money found in the estate, a particular account of which is lodged- with the court by the administrator.” And the plaintiff proved, by William IT. Nicholson, Esquire, register of wills for Queen-Anne’s county, that when applied- to fpr copies of original papers in the above cause in April 1804, he found the original papers carefully wrapped up in the original inventory of tlie estate of Sarah Emory, and filed in a bundle of other papers belonging to his office, and he has no recollection 'of having seen this paper before;, but, he finds,that he gave a certifióate of the. paper on the 21st of October 1799, for the plaintiff, but has no recollection of the' situation in which the paper was. in 1799; but from, the manner m which papers are usually filed away in his office, he believes that in the year 1799, the paper was.wrapped, up in the same situation that he found if in Apr.il 1804;. that he was apr pointed, register, of wills in the year. 1796, and he has no knowledge of the time or by whom tlie above paper was brought into the register’s office, but believes, and is firm* ly convinced, that.it was lodged in the. office before he was appointed register. The plaintiff further proved, by comr petent evidence, that the writing on the paper marked A, was the hand-writing of one Donald M’ Quinn, who acted for several years as the clerk of Ezekiel Forman; but. the witness, by whom the band-writing- of. Donald 3D Quinn xvas proved, declaied that he had no knowledge at what time and at whose instance the paper was rpade out, nor has he any knowledge of its being lodged in the register’s. office for Queen-Jlnne’s county, and that the words “add;-, fiqnal inventory,’-’ endorsed thereon, were the hand-writing of Ezekiel Forman’, and also that the writing on the paper marked R, was the hand-writing qf.said Forman. The plaintiff then offered the original, papers, so. proved, as evidence to charge Ezekiel Forman, in his capacity of administrator Of Sarah Emory, with the several sums of money specified in the paper marked A, as part of the. chattels, rights and credits, of Sarah Emory. But the defendant objected to said papers, and contended that the same were not competent evidence. And the court, [Chase, Ch. J. Done, apd *247 Sprigg, J.3 were of opinion, that they were not competent svideuce in law to charge Ezekiel Forman, as aforesaid', and refused to permit them to be given in evidence to the jury. The plaintiff excepted. Verdict and judgment for tile defendant.

Wright, Hammond, hnd John Scott, for the Plaintiff.

Martin, (Attorney General,) Carmichael, and James Scott, for the Defendant.

The plaintiff appealed to this court