TOWNSHEND v. DUNCAN.—2 BLAND. 83

order of the Court indicating the matter in issue, on oath, publi-
city, the right to cross-examine, and a penal responsibility. It
may, therefore, be as confidently relied on as testimony taken in
any other way; being in no manner open to the strong objections
to that kind of ex parte, affidavit evidence, to which the Court of
Chancery of England allows itself to resort, for the determination
of some of *the most delicate and important cases that are
brought before it. Wellesley v. The Duke of Beaufort, 3 86
Cond. Chan. Rep. 1; Pork's His. Co, Chan. 441. It is upon these
grounds, that I think this mode of taking testimony deserves the
continued sanction, approbation, and protection of this tribunal.
Winder v. Diffenderffer, order, 4 May, 1829, 'post.

The testimony taken under the order of the 21st of February,
1828, before a justice of the peace, has therefore, been brought in
according to the regular course of the Court.

The will of the late William Duncan, it appears, has been
proved and recorded, according to the Act of Assembly, which
declares, " that it shall and may be lawful for the Judge of Probate
of Wills to take the probate, or cause to be proved any last will
or testament within this Province, although the same concerns
titles of lands;" 1715, ch. 39. s. 2; which for this purpose is still
in full force. A probate so made of a will devising real estate, it
has always been held, is at least prima facie evidence of its val-
idity; Carroll's Lessee v. Llewellin, 1 H. & McH. 162; Smith's Lessee
v. Steele, 1 H. & McH. 419; Massey v. Massey, 4 H. & J. 142;
Darby v. Mayer, 10 Wheat. 465; Since so expressly declared by 1831,
ch. 315, s. 1: and there being in this case, no allegation or evi-
dence, which, so far questions the validity of this will, as to throw
the burden of sustaining its verity upon the plaintiffs; and these
infant defendants as well a,s the plaintiffs claiming under it, the
certified copy offered must be considered as sufficient, for all the
purposes for which it is produced.

From the pleadings and proofs it is very clear, that this will can-
not be so construed, as to authorize a sale of the real estate
for *the purpose of raising or securing the payment of this an-
nuity; nor can it be construed to give the plaintiff Anna Maria an
estate for life, or any other lesser estate in the lands charged with
the payment of the annuity. These infant devisees could only take
this estate subject to the charge upon it, and the annual rents and
profits, as it is now shown, so far exceed the annuity in amount as
to demonstrate, that it is much to their benefit so to take it. And
consequently, all their property, in respect to this large amount of
assets thus placed in their hands, and which they have taken,
must be held liable for the payment of this annuity.

For the arrears which accrued since the death of the testator,
and were left unpaid by Deborah Duncan, the late guardian of
these infants, her sureties as guardian, if she gave any, or her