RANDALL v. HODGES.—3 BLAND. 471

probate of such an instrument which is effectual as to personalty
is by no means conclusive as to the realty; and the tribunal before
which it is directed to be brought for probate, although clothed
with a limited power as to personal property has no sort of juris-
diction in relation to titles to real estates.

Hence, although a will, if it were like an ordinary deed of gift,
which conveyed property to no more than one person, might with
propriety be entrusted to the custody of the donee alone; yet it is
sufficiently obvious, from the various and rival interests which
almost always arise among those who claim under a will, as well
as between them and the representatives of the deceased as on
his intestacy, that there ought to be some legal place of common
deposit where it may be safely kept for the benefit of all con-
cerned; and that there should also be some mode of having it
finally and conclusively authenticated as well in regard to the real
as the personal estate.

In England it is the duty of an executor to have the will proved
before the Ecclesiastical Court, either in common form, by his
own oath, or by the testimony of witnesses; in case its validity
should be disputed. When it has been proved, the original is
deposited in the registry, and a copy thereof is made out under
the seal of the Court, and delivered to the executor, with a certifi-
cate of its having been so,proved, all which together is usually
styled the probate. 2 Blac. Com. 508. *The probate by 480
witnesses in the Ecclesiastical Court is conclusive as to the
personal estate; Toller Executors, 77; but it does not in any degree
authenticate the will in so far as it may have made any disposition
of real estate; and, consequently, if its validity be questioned as
to that, it will be necessary to prove it as fully as if nothing had
previously been done. It is a privilege of the heir to have an
issue devisavit vel non to try the validity of a will; but this privi-
lege may be rejected, as the Chancellor is not obliged, in any case,
to send out an issue. Twicer v. Sanger, 6 Exch. Rep. 49; Attorney-
General v. Burridge, 6 Exch. Rep. 358.

But the Ecclesiastical Court having obtained legal possession of
the will, and having become pledged for its safety, in respect to
the personal estate, of which it had made some disposition, that
Court cannot, therefore, allow it to be delivered exclusively into
the hands of any one who may claim under it, lest the interests of
others might be put in peril; and yet, as regards the realty, it can-
not be legally proved unless the original itself be brought before
the Court and jury, who alone are competent to determine its
validity. To remove this difficulty and to prevent injustice, the
Court of Chancery has assumed a jurisdiction, upon petition, to
order the original will to be delivered by the register of the Eccle-
siastical Court to the petitioner, on his giving bond for its safe
return, lor the purpose of its being brought before the proper tri-