Jacobs v. Willis' Heirs. bated in that other State, and the State of residence will give such probate due force and credit"-citing Walton v. Hall, 66 Vt., 455, 29 Atl., 803. "Where a will is a domestic one, and entitled to original probate because it is made by a citizen of the State, although executed while temporarily residing abroad, or while previously residing in another State, an authenticated copy may be admitted to probate in case it is impossible to present the original will; as where it is written in a book of wills instead of one on a loose sheet of paper." 40 Cyc., L. & Pro. Wills; Pratt v. Hargreaves, 77 Miss., 892, 28 South., 722, 78 Am. St. Rep., 551. In re Faber, 5 Ohio S. & C. P. Dec., 575; Robert's Succession, 2 Rob. (La.) 427. In re McDonald's Estate, 130 Pa., 480, 18 Atl., 617: "Mrs. McDonald and her husband were domiciled in this county for a number of years prior to their visit to Ireland, and their intention was to return here after the visit. Her domicile was therefore in this country, and this court had original jurisdiction of the probate of her will. It was, however, probated and filed in the probate court at Dublin, Ireland; and, as it cannot be withdrawn from the records of that court, a certified copy was admitted to probate by the register, upon proof by the subscribing witnesses as to the execution of the original and that the copy was a true one. It is objected to this that only the original will could be admitted to probate. "In Foster's App., 87 Pa., 67, it was held that when a will of a testator was lost or destroyed, its contents may be proved by parole and the will as thus reproduced admitted to probate. And it was said in Laing v. Oakly, 98 Jacobs v. Willis' Heirs. Mass., 267, that the inability to produce the original will, caused by its detention in a foreign court, would make secondary evidence of its contents admissible, as much as if the papers were lost. The principal objection which can be made against permitting a lost or destroyed will to be probated, is that the contents have to be proven by oral testimony, and that too much, therefore, depends upon the memory of the witnesses. But where the will has been deposited in a foreign court and a copy of it is produced this objection does not exist; and, as it is as much beyond the control of the parties there, as if it were lost or destroyed, a fortiori, the rule applicable to lost wills should apply. It follows therefore that the register was right in admitting the copy of the will to probate, and this appeal must be dismissed." If a certified copy of the will of a nonresident may be probated in Tennessee, under section 3916, is there any reason to deny equal force to the will of a resident of Tennessee, which has been erroneously probated in a foreign State first. Our conclusion is that the certified copy of the will in this case is entitled to be probated under section 3916. The next question is whether or not the certified copy of the record of the probate proceedings in Jackson county, Ala., may be entitled to probate. Section 5585a1 of the Code (U. S. Comp. St., section 1519) reads as follows: "The acts of the legislatures of the several States shall be authenticated by having the seal of their respective states affixed thereto. The records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the at Jacobs v. Willis' Heirs. testation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken." Article 4, section 1, of the United States Constitution, says that full faith and credit shall be given in each State to the judicial proceedings of every other State. The will in question was properly admitted to probate by the Alabama court and the judgment of a probate court is a judicial proceeding. Fitzsimmons v. Johnson, 90 Tenn., 416, 17 S. W., 100. The rule respecting probate adjudications is thus stated (23 Cyc., 1591): "A judgment or decree of a competent court in another State admitting a will to probate, or revoking probate already granted, is a 'judicial proceeding' to the record of which full faith and credit is to be given when authenticated conformably to the act of Congress." The rule is stated in 15 R. C. L., p. 938, section 413: "The authentication provided by Congress for the acts, records and judicial proceedings in each State was intended as evidence only of the existence of such acts and records, and not to give them any greater validity or effect than that which they had in the State from which they were thus accredited. It merely provides a mode of proving public records, leaving them, when proved, invested Jacobs v. Willis' Heirs. with the same force and effect, and no other, which they had at home. If they have locally the faith and credit of evidence of the highest nature, that is to say, conclusive evidence, they must have the same faith and credit in every other court." See Thompson v. Whitman, 18 Wall., 457, 21 L. Ed., 897. From the foregoing it is apparent that the certified copy of the will in the probate proceedings from the probate court in Alabama is entitled to be probated in Franklin county, Tenn., under section 5585a1. It follows that the court of civil appeals will be affirmed. Wildman Mfg. Co. v. Davenport Hosiery Mills. WILDMAN MFG. Co. v. DAVENPORT HOSIERY MILLS.* 1. TRIAL. (Nashville. December Term, 1922.) View of evidence on motion for directed verdict most favorable to opponent. The trial judge should take the most favorable view of the evidence supporting the rights asserted by the party against whom motion for directed verdict is made, and discard all countervailing evidence. (Post, pp. 556, 557.) Cases cited and approved: Walton v. Burchel, 121 Tenn., 715; Railroad v. Williford, 115 Tenn., 108; Knoxville Traction Co. v. Brown, 115 Tenn., 323; Kinney v. Railroad, 116 Tenn., 450; Norman v. Railroad, 119 Tenn., 401; Railroad v. Morgan, 132 Tenn., 1; Mayor & City Council v. Reese, 138 Tenn., 471; Johnston v. Ry. Co., 146 Tenn., 135. 2. TRIAL. Whole case not submitted to court by both parties moving for directed verdict. Motions by both parties for directed verdict do not submit the whole case to the court, but each motion stands as if made and remain ing alone, and is to be disposed of on its merits. (Post, pp. 557559.) 3. APPEAL AND ERROR. directed verdict reviewable. Action on motions of both parties for Though both parties move for directed verdict, action of the trial court in granting motion of one and overruling that of the other is reviewable on appeal. (Post, pp. 557-559.) Acts cited and construed: Acts 1919, ch. 118. Case cited and approved: Hardware Co. v. Hodges, 126 Tenn., 370. Cases cited and distinguished: Regina Co. v. Gately Furniture Co., 154 N. Y. Supp., 888; Maggioros v. Edson Bros., 164 N. Y. Supp., 377. *On effect of acceptance of goods as a waiver of damages for delay in delivery see notes in 54 L. R. A., 718; 7 L. R. A. (N. S.) 1114. On necessity for notice of defects as prerequisite to recovery on warranty of sale see note in 50 L. R. A. (N. S.), 783. |