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RANDALL v. HODGES. 479
its proper execution; but a will can only commence its operation
after the death of the donor. A last will is an instrument whereby
the author makes a disposition of his property, most commonly,
in separate parcels, in different estates, and to a variety of persons,
among whom there are, or may be, mutual or conflicting interests
to a considerable extent. A will always disposes of property,
which, upon the death of its owner, would otherwise, according to
its nature, be carried by operation of law in different directions.
The personalty, which is the primary and natural fund for the pay-
ment of debts, would be placed in the hands of an administrator,
who is considered in this court as a trustee for the benefit of cre-
ditors and next of kin; and the realty would devolve upon the
heirs. The will, in most respects, follows these different kinds of
property, as if it were, in fact, a separate and distinct deed of gift
of each. The same solemnities necessary to constitute a valid
will disposing of real estate are not required to one which disposes
of nothing more than personal property, or in so far only as it dis-
poses of personalty. A probate of such an instrument which is effec-
tual as to personalty is by no means conclusive as to the realty;
and the tribunal before which it is directed to be brought for pro-
bate, although clothed with a limited power as to personal property
has no sort of jurisdiction 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 de-
posit where it may be safely kept for the benefit of all concerned;
and that there should also be some mode of having it finally and
conclusively authenticated as well in regard to the real as the per-
sonal estate.
In England it is the duty of an executor to hare 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 certificate of its having
teen so proved, all which together is usually styled the probate, (b)
(6) 2 Blac. Com. 508.
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