majority"> Allejst, J.

The statute now in force (Rev., sec. 3126) requires the clerk of the Superior Court to take iu writing the proofs and examinations as to the execution of a will and to embody the'substance thereof in his certificate of probate and that the certificate be recorded with the will; but at the time when the paper-writing offered in evidence by the defendants as the will of Alfred Hatley was placed on the records there was no such requirement.

The court of pleas and quarter sessions then had jurisdiction of the probate of wills, and there was at that time no provision in the statute requiring the taking of the proofs in writing nor for recording the probate. Revised Code, chapter 119, section 14.

The practice was to exhibit the will before the court and offer the proofs of execution, and for an entry to be made upon the minutes of the adjudication, and the clerk, acting upon the authority of the court, then recorded the will upon the will book. In most instances he also recorded a memorandum of the proceedings before the court, but this was not done in all eases, and it appears, not to have been the practice in the county of Stanly, where this action was tried.

We have, then, the ease of a paper-writing which is in its regular place upon the will book of the county, and which, without a memorandum of the probate appearing thereon, was placed there legally and under rightful authority, provided the court of pleas and quarter sessions admitted it to probate.

In the absence of proof, what is the presumption as to the action of the court? Is it presumed that the court did not act and did not admit the paper-writing to probate, or is the presumption to the contrary?

The paper is in its proper place on a record of the court, and it is there rightfully or wrongfully. Is the presumption that the officer who transcribed it did so legally or that he did so without legal authority? The authorities seem to be practically uniform in favor of the presumption that the officer acted regularly and in accordance with law.

“The general presumption is that public officers perform their official duty and that their official acts are regular, and where some preceding act or preexisting fact is necessary to the validity of an official act the presumption in favor of the validity of the official act is presumptive proof of such preceding act or preexisting fact.” 22 A. and E. Ency., 1267.

“It will be presumed that public officers have been duly elected and that they have qualified; that their official acts are properly performed, and, in general, that everything in connection with the official act was legally done, whether prior to the act, as giving notice, serving process, *167 or determining the existence of conditions prescribed as a prerequisite to legal action.” 16 Cyc., 1076.

“It is a rule of very general application that where an act is done which, can be done legally only after the performance of some prior act, proof of the latter carries with it the presumption of the due performance of the prior act.” Knox County v. Bank, 147 U. S., 91.

“The fact that an official marriage license was issued carries with it a presumption that all statutory prerequisites thereto had been complied with. This is the general rule in respect to official action, and one who claims that any such prerequisite did not exist must affirmatively show the fact.” Nofire v. United States, 164 U. S., 657.

This principle has been applied in our State in Clifton v. Wynne, 80 N. C., 147; Gregg v. Mallett, 111 N. C., 76; Morris v. House, 125 N. C., 556; Cochran v. Improvement Co., 127 N. C., 394, and in other cases.

In Gregg v. Mallett, supra, the Court says: “But by the general rules of evidence certain presumptions are continually made in favor of the regularity of proceedings and the validity of acts. It presumes that every man in his private and official character does his duty, until the contrary is proven. It will presume that all things are rightly done, unless the circumstances of the ease overturn this presumption. Thus it will presume that a man acting in a public office has been rightfully appointed, that entries found in public books have been made by the proper officer, and like instances abound of these presumptions.”

Nelson v. Whitfield, 82 N. C., 50, is almost directly in point. In that case the records had been destroyed and the original will could not be found, and the parties claiming under the will had to rely upon proof of its contents by witnesses who had seen the will on the record, but they were not able to furnish any evidence that it had been probated or that a certificate of probate was recorded, and the Court, dealing with this question, says: “At the date of the alleged execution of the will, the courts of pleas and quarter sessions had jurisdiction of the probate of wills and were directed to order them to be recorded in proper books kept for that purpose. They were to be recorded in these books after probate had. The fact, then, that the will of Benjamin Whitfield was found in a book kept by the clerk of court of pleas and quarter sessions in accordance with the requirements of law is prima facie evidence of the probate of the 'will. Omnia presumuntur rite acta esse. There was evidence, then, to go to the jury of the existence of the will of Benjamin Whitfield and that it had been duly proved and recorded.”

This presumption in favor of the regularity and the legality of the action of the clerk who recorded the will is sustained by the facts and *168 circumstances appearing in evidence. Tbe paper-writing has been upon tbe records for more than fifty years, and it lias not been challenged until a short time before this proceeding was commenced. The devisees in the will have been in the exclusive possession of the property during this long time, and the petitioners lived within a short distance of them and knew that they were claiming and using the property as their own. The petitioners have accepted the sums of money given to them in the will and have retained it, and at the time of their acceptance, according to the evidence of the only one of the petitioners who was examined, a copy of the will was present.

• We are therefore of opinion that the paper-writing was properly admitted in evidence as the will of Alfred Hatley, and if evidence was offered in rebuttal of the presumption that it was properly probated, the weight of the evidence was for the consideration of the jury. It appears, however, that this rebutting evidence upon which the plaintiffs rely is not complete in that the clerk who made an examination of the records for the purpose of seeing if a minute of the probate could be found, admitted that he had not searched over all of the different records.

We might also rest our decision upon the ground that the petitioners, according to all of the evidence, and after a full knowledge of the facts, and when a copy of the will was present, accepted benefits under the will, and if so, they would not be heard to impeach its validity. In re Will of Lloyd, 161 N. C., 559.

We find no error in the record.

No error.

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