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In re proving the last will & testament of Diez

56 Barb. 591 Court N.Y. Sup. Ct. Decision date 1870-04-04 English

Delivered by Cardozo, J.

Contents

Majority

p. 591
In the Matter of proving the last will and testament of Frederick Diez.

Headnote

An exemplified or authenticated copy of a will can be proved in the Supreme Court only when the original will is in the possession of a foreign “ court or tribunal.” A notary public is neither a court or a tribunal of justice, according either to the common or the civil law.
If there is anything in the law of a foreign country which confers upon a notary any such power or position as would bring his office within the definition of a court or a tribunal of justice, it should be proven as a fact.
p. 592
[Net York General Term,
April 4, 1870.
THIS was an application, under the provisions of the Revised Statutes, for a commission to prove an exemplified or authenticated copy of a will executed according to the laws of this State, the original will being alleged to be in the possession of a notary public in the kingdom of Bavaria.
The court, at special term, denied the application, and the applicant appealed.

By the Court,

It is unnecessary, and therefore improper, to express any opinion upon the construction or effect of the paper before us, because it is plain that upon the evidence presented it cannot be proved here.

The statute (Stat. at Large, p. 68, § 63, Edm. ed.) only allows an exemplified or authenticated copy to be proven when the original will is in the possession off a foreign “court or tribunal of justice.” It cannot be pretended that a notary public is either a court or a tribunal of justice, according either to the common or the civil law; and if, as the counsel for the appellant, seemed to suppose, there is, which we think is not the case, anything in the law of Bavaria which confers upon a notary any such power or position as would bring his office within the definition of a court or a tribunal of justice, there is no evidence before us to show it, and it should have been proven as a fact on .the part of the appellant.

The order below must, therefore, be affirmed with costs.

Ingraham, Sutherland and Cardozo, Justices.]