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482 RANDALL v. HODGES.
From this brief review of the law in relation to wills, it is evi-
dent, that none of those cases relied on, which shew, that the
Court of Chancery has undertaken to have the original will itself
taken from the custody of the register and delivered out to a party,
or brought before the court for the purpose of investigation and
proof, can have any material bearing upon the matter now under
consideration.
It may not, however, be amiss to observe, that, in relation to
the probate and custody of wills, our law appears to stand as much
in need of amendment as that of England. 'I have often thought
it a very great absurdity, ' says Chancellor HARDWICKE, 'that a will
which consists both of real and personal estate, notwithstanding it
has been set aside at law for the insanity of the testator, shall still
be litigated upon paper depositions only in the Ecclesiastical Court,
because they have a jurisdiction on account of the personal estate
disposed of by it. I wish gentlemen of abilities would take this
inconvenience and absurdity into their consideration, and find out
a proper remedy by the assistance of the Legislature. But, as the
law stands at present, it is not in the power of this court to inter-
pose, so as to stop the proceedings in the Ecclesiastical Court. ' (m)
The original will itself should in all cases, be committed entirely
to the safe custody of the Register of Wills, as a part of the docu-
ments of his office, for which he should be expressly held respon-
sible; since as an original it can only have authenticity from its
being found in its proper place; (n) it should be required to be
recorded; and if its validity should be drawn in question, either as
to real or personal estate, an issue should be made up, to which all
who claim under it, and the heirs, should be made parties, to be
tried in the county court of the county where the original was kept;
and it should be the duty of the Register of Wills to attend and
have it with him at the trial. The original will should only be
allowed to be taken from the office on its being shewn to be neces-
gary to exhibit it to a witness who could not be made to attend at
tilt trial; and, in such case, the court before which the trial was to
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them to establish their title, as such, to lands in Ireland, of which he had died seised
m fee simple. —1807, ch. 12. By a similar act the Register of Wills of Worcester,
was authorized to deliver the original will of Joseph Delastatius, deceased, for the
purpose of having it recorded in Accomack county, Virginia, —1808, ch. 89. And by
a special act the Register of Wills of Charles county was directed to transmit the
original will of Daniel of St. Thomas Jenifer, to the Court of Appeals, to be there
used in a case then depending, and then to be returned. —1822, ch. 117.
(m) Montgomery v. Clark, 2 Atk. 378. —(n) 1 Stark. Evid. 170.
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