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480 RANDALL v. HODGES.
The probate by witnesses in the Ecclesiastical Court is conclusive
as to the personal estate; (e) but it does not in any degree authen-
ticate the will in so far as it may hare 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 privilege may be
rejected, as the Chancellor is not obliged, in any case, to send out
an issue, (d)
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 cannot 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 Chan-
cery has assumed a jurisdiction, upon petition, to order the ori-
ginal will to be delivered by the Register of the Ecclesiastical
Court to the petitioner, on his giving bond for its safe return, for
the purpose of its being brought before the proper tribunal; or
even sent abroad to be exhibited to witnesses who can testify re-
specting it, but who cannot be brought before the court to whom
the question of its authenticity is to be submitted, (e)
In Maryland also, it is the duty of the executor to have the will
proved; and, for that purpose, to have it lodged with the Register
of Wills of the proper county. But now, as under the Provincial
government, there seems to have been but one form of probate,
and that is, by the oath of the executor, and also by the testimony
of witnesses; and not merely in the one or the other of those forms
as in England, (f) After the probate has been thus made here,
the will is recorded; and the original will is, in all cases, held for
safe custody by the register, as is done by the English Ecclesias-
tical Court. This practice or common law of Maryland by which
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(c) Toller Executors, 77. —(d) Tucker v. Sanger, 6 Exch. Rep. 49; Attorney-
General v. Burridge, 6 Exch. Rep. 358. —(e) Frederick v. Aynscombe, 1 Atk, 627;
Horse v. Roach, 1 Dick. 65; S. C. 2 Stran. 961; Williams v. Floyer, Amb. 848;
Lake v, Causfield, 3 Bro, C. C. 263; Forder v. Wade, 4 Bro. C. C. 476; Carrington
v, Payne, 5 Ves. 411; Hodson v. ———, 6 Ves. 135; Ford v. ———, 6 Ves. 802. —
(f) Dep. Com. Guide, 72.
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