Y.9 Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Cornell Univeralty Library KF 760.L6T51 A monograph on the law of lost wills / 3 1924 018 805 667 (SorttpU mam ^riynnl tobtarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018805667 A MONOGRAPH ON THE LAW OF LOST WILLS. BY W. W. THORNTON. Author of Jubibs and Instbuctioks, etc. CHICAGO! CALLAQHAK AND COMPANY, 1890, Entered according to Act of Congress, in the year 1890, By CALLAGHAN AND COMPANY, in the office of the Librarian of Congress, at Washington. H. A. TAYLOK, , Fhintbr add Stebeotvfeb, uadisok, -wis. 0^^^^^^i.;^^ PREFACE. The subject of Lost Wills is one of considerable interest to the profession. Little attention has been given by au- thors to the subject: usually only one or two paragraphs or pages. It has been my endeavor to" supply this omission, and present a worii citing all the cases on the subject, bringing out all points decided or involved in any dicta. I have not hesitated to make liberal quotations from the opinions of the courts, which is probably to the profession as satisfactory a wa}' of presenting the questions discussed as any other. I have also inserted in the appendices ex- tracts from Coote on Probate Practice, which it is thought will aid the practitioner. , W. W. Thornton. Indianapolis, Ind., March 29; 1890. TABLE OF CONTENTS. CHAPTER I. JURISDICTION. Sec. 1. Introduction. 2. Jurisdiction — Historical — Ecclesiastical court — Wills of realty and' personalty. 3. Lost will — Courts of equity. 4. Courts of equity — Personal and real estate wills. 5. Jurisdiction of probate courts. 6. Jurisdiction of probate courts, continued. 7. Jurisdiction in Massachusetts. 8. Jurisdiction denied. 9. Probate courts may require parol evidence of subsequent will in opposition to probate of a former one. 10. Probate court's power under general statutes. 11. Power of courts of chancery. 12. United States courts. 13. Kentucky courts. 14. English courts. 15. Miscellaneous. 16. Rule to be deduced from the authorities. CHAPTER II. WHEN WILL MAT BE PROVED. Sec. 17. Lost after death of testator. 18. Lost during life of testator. 19. Testator's knowledge of destruction. 20. Destroyed while insane. 21. Destruction not amounting to a revocation. 22. Fraudulent destruction. 23. Statutes. 24. Introduction as evidence of title before probate. 25. Holding receiptor of property as a trustee. 26. Destruction by compulsion — Undue influence. 27. Res adjudicata, 27a. Laches. VI TABLE OF CONTENTS. Sec. 28. statute of limitations. 29. Statute of frauds. 30. Attempt to probate former, and proof of subsequent but lost will. CHAPTER m. PLEADING — POINTS OP PRACTICE. Sec, 31. Production — Petition. 32. Allegation of loss or destruction — Pleading. 33. Will in existence. 34. Proof must conform to petition — Fraudulent destruction, 85. Parties. 36. Temporary letters of administration — Advertisement. 37. Actual production of will in existence not necessary to pro- bate. 38. Joinder of actions. 39. Enjoining a distribution. 40. Plea — Answer. 41. Interest vesting. CHAPTER IV. PROOF OP EXECUTION or WILL NECESSARY. Sec. 43. Proof of execution of will necessary. 43.. Execution proved by subsci-ibing witnesses. 44. Attesting witness dead or unknown. 45. Presumption as to execution — Attestation clause — Drawn by an attorney, 46. Declarations of testator. 47. Admissions. 48. Burden — SuflSciency of proof. 49. Spoliated, CHAPTER V. PROOF OF LOSS, DESTRUCTION OR SEARCH. Sec. 50. Proof of loss or destruction essential. 51. Proof of loss, to whom directed, 53. Proof of search, 53. Examples of search. 54. How proof of search is made — Admissions. 55. Declaration of testator to prove destruction. TABLE OF CONTENTS. Vll CHAPTER VI. PKfcSXJMPTION OP REVOCATION. Sec. 56. Presumed to be revoked. 57. Reasons for presumptions. 58. Presumption may be rebutted. ' 59. Declaration of testator, 60. Tlie testator's conduct may be considered. 61. Examining contents of will. 62. Declarations made at time of tearing will — Res gestce. 63. Statutes -^ Number of witnesses. 64. Will in possession of another. 64a. War. 65. Charge of fraudulent destruction — Presumption — Posses- sion. 66. Declaration to show a revocation. 67. Filling blanks — Striking out clauses. 68. Duplicate wills. 69. Change of situation — Poverty of child. 70. Examples — Presumed continuance of will. 71. Sufficiency of evidence to overcome presumptions. 73. Burden on propound er. 73. Question for jury. 74. Pleading. CHAPTER VII. PROOF OP CONTENTS. Sec. 74a.' Order of proof — Burden. 75. Secondary evidence — Parol — Production of original. 76. Best evidence — Copy. 77. Copy required by statutes — Sufficiency of evidence. 78. Draft. 79. Memoranda made by testator. 80. Use made of the above memoranda. • ' ' 81. Letters of testators and others. 83. Admissions. 83. Probability of disposition of property. 84. Refreshing memory. 85. Declaration of testator. 86. Same, continued. 87. Anterior declarations. 88. Posterior declarations, 89. Same, continued — Declarations of third persons. 90. Dissenting vie*' on declarations. yiU TABLE OF CONTENTS. CHAPTER VIIL SUFFICIENCY OF EVIDENCE. Sec. 91. Danger of establishing lost will. 93. Degree of proof required — Burden. 93. Same amount of evidence as in a contract — Ejectment. 94. Destroyed by interested person. 95. Destroyed by propounder. 96. Ejectment. 97. Destroyed before death. 98. Old will — Long possession of real estate. 99. Proof by copy. 100. Statutory copy. 101. Value of declarations of testator, 102. Same, continued. 103. Witnesses' opportunity to know contents — Recollection — Memory — Intere.st. 104. Corroboration — Interest. 105. Number of witnesses. 106. Statutory number. 107. Diversity of or conflict in evidence. 108. Only substance need be proved. 109. Examples of sufficiency of proof. CHAPTER IX. PROOF OF A PART ONLY. Sec. 110. Entire will must be proved. 111. Same, continued — Part sufficient. 113. Same, continued — Legacies unknown — Essential and sub- stantial dispositions necessary. 113. Same, continued — Indorsing residuary legacy — Remain- ders, 114. Rule modified — Revocatory clause proved. CHAPTER X. LOST SUBSEQUENT WILL — RECALLING PROBATE OF FORMER WILL. Sec. 115. Defeating probate of prior by showing subsequent but lost will. 116. Revoking probate of former will. 116a. Effect of setting aside probate without revoking former will. 117. Codicil found after probate of will. TABLE OF CONTENTS. IX CHAPTER XI. COMPETENCY OF WITNESSES. Sec. 118. R-oof of search. 119. Proof of contents. 120. Witness not competent, CHAPTER Xn. TR.TAT. — ISSUE — VEEDICT — DEOEEE — COSTS — INNOCENT PDECHASEES. Sec. lai. Trial. 122. Jury. 123. The issue. 124. Two wills — Double issue — Interest. 125. Verdict or finding. 126. The decree. 127. Examples of decrees. 128. Decrees in probate in solemn form. 129. Innocent purchaser. 130. Costs. Appendix A. Appendix B. Index. TABLE OF CASES CITED IN THIS VOLUME. PAGE. Abbott V. Taylor, 11 Bush, 335 40 Adams v. Adams, 23 Vt. 50 37, 40, 179 Allison V. Allison, 7 Dana, 91 - ... 40, 147 Anderson V. Irwin, 101 111. 411 - - 73,133,173 Apperson v. Cottrell, 3'Port. (Ala.) 51 ; S. 0. 29 Am. Dec. 239 25, 31, 86, 46, 56, 63, 65, 79, 106, 107, 115, 159, 168, 179 Apperson v. Dowdy, 83 Va. 776; S. C. 1 S. E. Rep. 105 - 105, 106, 107, 131, 135, 141 Appling V. Eades, 1 Gratt. 286 - - - - 80 Banks v. Booth, 6 Munf. 385 - 36 Barber, Goods of, L. E. 1 P. & D. 267; S. C. 36 L. J. R. (N. S.) P. ■ & M. 19 ... ... . . 63, 188 Barnes v. Edward, 17 B. Mon. 632 - 40 Baumgarten v. Pratt (riot reported) - ... 84 Beauchamp's.Will, 4 T. B. Mon. 361 - - - - - 47 Bessey v. Bostwict, 13 Gr. Oh. (Can.) 279 - - - 130 Bessey v. Bostwick, 14 Gr. Ch. (Can.) 346 - - - - 185 Betts V. Jackson, 6 Wend. 173 45, 76, 83, 99, 100, 101, 103, 133, 159, 163, 168 Borlase v. Borlase, 4 N. of Cas. 106 47, 99 Boughey v. Moreton, 3 Hagg. Eccl. 191 .... 93 Bowen V. Idley, 4 Edw. Ch. 148 -..-.,. 44,176 Bowen v. Idley, 6 Paige, 47 '38, 43, 44, 176 Bowen v. Johnson, 5 R. I. 113 . - - - ... 165 Boyse v. Bosborough, 6 H. L. Cas. 3 26, 38 Brady y. Wall, 17 Gr. Ch. (Can.) 699 107 Bradford v. Young, 26 Ch. Div. 656; S. C. 54 L. J. Ch. 96; 50 L. T. 707; 32 W. R, 901 165 Brent V. Dodd, Gilmer (Va.), 211 36 Brookie V. Portwood, 84 Ky, 259 47,133,166 Brown v. Brown, 8 E. & B. 876; S. C. 27 L. J. (Q. B.) 17 - - 136 Brown v. Brown, 10 Yerg. 84 - - - - - -■ - 37, 80, 133 Brown V. Morrow, 48 Q. B. (Can.) 436 77,115 Brown, Goods of, 1 8w. & Tr. 82; 8. C. 4 Jur. (N. 8.) 344; 37 L. J. (P. D.)41 55,163 1 i! TABLE OF CASES CITED. PA.GE. Brunt V. Brunt, 3 P. & D. 37; S. C. 5 Moak, 530 - - - 47, J)S Buchanan v. Matlock, 8 Humph. 390; S. C. 47 Am. Dec. 633 25, 38, 30, 31, 37, 40, 41, 131, 183, 185 Bulkley v. Redmond, 3 Bradf. 381 - - - 37, 47, 80, 165 Burge V. Hamilton, 73 Geo. 624 - - - 105, 147, 154 Burls V. Burls, L. R. 1 P. & D. 473; S. C. 36 L. R. (N. S.) P. & M. 125 - .... 109, 185, 188 Burns V. Travis, 117 Ind. 44; S. C. 18 N. E. Rep. 45 - - 165 Burtenshaw v. Gilbert, Cowp. 54 - - - - 84, 98 Butler V. Benson, 1 Barb. 526 ^ 69 Butler V. Butler, 5 Harr. (Del.) 178 - '' - 64, 154 Butts, Goods of, 3 Spinks, 359 188 Callan, Goods of, 9 Ir. Eq. 484 60 Callaghan, Goods of, 13 Ir. Ch. 245 - ... - 62 Callaghan v. McKernan, 3 Dem. 421 - - - 149 Campbell, Goods of, 3 Hagg. Eccl. 555 ... 61 Campbell v. Logan, 3 Bradf. 90 . . - . j ]65, 166 Campbell v. West, 3 B. Mon. 343 40 Chisholm v. Ben, 7 B. Mon. 408 - - 68, 141, 154 Clarke v. Goodrum, 61 Miss. 751 .... 50, 165, 179 Clark V. Morton, 5 Rawle, 334 - - 71 Clark V. Wright, 3 Pick. 67 - 30, 104, 133, 166, 180, 181 Collyer v. Collyer, 4 Dem. 53; S. C. 17 Abb. N. C. 338 - 64, 68, 73, 79, 146, 185 Collyer V. Collyer, 110 N. Y. 48; S. C. 18 N. E. Rep. 110 - 101 Colvin V. Eraser, 1 Hagg. Eccl. 107 .... . . 57 Colvin V. Eraser,. 3 Hagg. Eccl. 366 - - - . 71, 86, 87, 98, 109 Conoly V. Gayle, 61 Ala. 116 - - - 56, 64, 115, 136, 169 Converse v. Starr, 33 Ohio St. 491 - - 188 Cousin, Goods of, 1 N. of Cas. 396 ----- - 61 Crickett v. Field, 19 W. R. 333 73 Cutto V. Gilbert, 9 Moo. P. C. 131 ;- - _ . . go, 163 Dalston v. Coatsworth, 1 P. Wms. 731 -"---.. gg Dan V. Brown, 4 Cow. 483; S. C. 15 Am. Dec. 395 49, 68, 69, 76, 78, 79, 91, 93, 168 Davis V. Davis, 2 Addams, 233 - . 83, 103, 138, 147, 166 Davis V. Gaines, 104 U. S. 386 - - . . 133 Davis V. Sigourney, 8 Met. 487 30, 56, 80, 104, 126, 131, 133, 141, 161 Dawson v. Smith, 3 Houst. (Del.) 335 - - 45, 64, 74, 76, 94, 108, 105 Deake's Appeal, 80 Me. 51 ; S. C. 13 Atl. Rep. 796; 6 Am. Prob. Rep. 317 - - 54 Dalaplaine, Matter of, 45 Hun, 335 * - 56, 63 Denston, Goods of, 3 Cartels, 741 60 TABLE OF CASES CITED, d PAGE. Dickey v. Malechi, 6 Mo. 177; S. C. 34 Am. Dec. 130 - 42, 44. 45, 145, 154, 169, Doe V. Hisoock, 5 M. & W. 363 119 Doe V. Palmer, 16 Q, B. 747; S. C. 20 L. J. (Q. B) 367 - 117, 118, 119, 124, 127 Doe V. Perkes, 3 B. & Aid. 489 - - ... 85 Dower f. Church, 21 W. Va. 47 - - - - - - 178 Dower v. Seeds, 28 W. Va. 112; S. O. 57 Am. Eep. 646 25, 32, 36, 154, 171, ISO Dudley v. Warner, 41 Vt. 58 56, 63, 131 Durant v. Ashmore, 2 Rich. (S. C.) 184 - - - - - 80, 83 Durfee v. Durfee, 8 Met. 490, note - - - . - - 104 Eckersley v. Piatt, L. R. 1 P. & D. 28; S. C. 86 L. J. (P. D.) 7; 15 W. R. 2.S2, 327 - - - - - - 65, 80, 83, 103 Etheringham v. Etheringham, Aleyn, 2 45, 49 Eurev. Pitman, 3 Hawks (N. C), 384 - - - - - 75 Everitt v. Everitt, 41 Barb. 385 38, 54, 61, 64, 66, 72, 104, 106, 108, 141, 180, 185 Fetherly v. Waggoner, 11 Wend. 599 - - - - 68, 72, 75, 135 Forbing v. Weber, 99 Ind. 586 - - - - 46, 106, 109, 187 Foresman's Will, ii4 Barb. 274 - - - - - 46 Foster v. Foster, 1 Addams, 462 - 105, 141, 185 Foster's Will, 13 Phila. 567; S. C. 34 Leg. Int. 222 36, 43, 63, 85, 103 109, 126, 139 Foster's Appeal, 87 Pa. St. 67 ; S. 0. 30 Am. Eep. 340 ; 1 Am6r. Prob. Gas. 435 - - - - - 88, 94, 96, 101, 103, 105 Fouvei-gne v. New Orleans, 18 How. 470 - - - - 39 Freeman v. Gibbons (not reported) - - - - - - 84 Fuentes v. Gaines, 92 XJ. S. 10 - - 39 Fuentes v. Gaines, 34 La. Ann. 85 ... . 80, 103 Gaines'. Appeal, 11 La. 124; S. C. 4 Am. L. Reg. (O. S.) 864 . 53, 145, 182, 185 Gaines v. Chew, 3 How. 619 - - - - 30, 34, 39, 61, 63, 165 Gaines v. Hennen, 24 How. 553 - - - 30, 44, 76, 105, 166, 183 Gaines v. New Orleans, 6 Wall. 642 - .... 183 Gardner, Goods of, 1 Sw. & Tr. 109; S. C. 27 L. J. (P. D.) 55, HO 94, 189 Goods of Barber, 1 L. R. P. & D. 268; S. C. 36 L. J. R. (N. S.) P. & M. 19 - - - - - - - - - 62, 188 Goods of Brown, 1 Sw. & Tr. 33; S. C. 4 Jur. (N. S.) 244; 37 L. J. (P. D.) 41 - . . - ■ 55 Goods of Butts, 3 Spinks, 359 - - 188 i TABLE OF OASES CITED. PAGE, Goods of Campbell, 3 Hagg^. Bccl. 555 61 Goods of Cousin, 1 N. of Cas. 296 " ." " ' " ^^ Goods of Denston, 3 Curteis, 741 60 Goods of Greig, 1 L. R. P. & D. 73; S. C. 35 L. J. R. (N. S.) 113; 14 W. R. 349 - - - - 189 Goods of Haines, 5 N. of Cas. 621 98, 99 Goods Of Halliwell, 4 N. of Cas. 400 - - - - •- '62 Goods of Hilliard, 26 L. T. 228 - - - - - - - 87 Goods of Pechall, 6 Jur. (N. S.) 406 - - - - - - 106 Goods of Ripley, 1 Sw. & Tr. 68; S. C. 4 Jur. (N. S.) 343 - - 71 Goods of Sykes, L. R. 3 P. & D. 26 - - - - - 139 Goods of Thomas, 30 W. R. 149 - - - - - 69 Goods of Thornton, 2 Curteis, 913 - ,---,- - 106 Goods of Weston, L. R. I P. & D. 633 - - - - - 97 Graham v. O'Fallon, 4 Mo. 601 . - - - 31, 98, 145, 154, 169 Greig, Goods of, 14 W. R. 849; S. C. 1 L. R. P. & D. 72; 35 L. J. R. (N. S.) 113 - - - - T - - - - 189 Habergham v. 'Vincent,"3 Ves. 230 - - - - - - 22 Haines v. Haines, 3 Vern. 441 - - - - - 35, 28, 38 Haines, Goods of, 5 N. of Cas. 621 - - - 98 Hale V. Monroe, 28.Md. 98 - - 131 Hall V. Gilbert, 31 Wis. 691 - - - 87,56,57,61,130,165 Hallv. GittingS, 2H. & J. 112 - - - - - 135 Hall V. Monroe, 38 Md. 98 1 - - - - - 135 Halliwell, Goods of, 4 N. of Cas. 400 . - - . 62 Hamilton v. Lightbody, 21 C. P. (Can.) 126 116 Hands v. James, Comyn Rep. 531 . . - . 69 Happy's Will, -4 Bibb, 553 - - - - ,31,40,106 Harris v. Harris, 36 Barb. 86 - - - - - 49, 51 , 146 Harris v! Harris, 36 N. Y. 433 . - . . 49, 51, 146 Harris v. Tisereau, 53 Geo. 153 ; S. C. 21 Am. Rep. 243 28, 38, 43, 50, . 56, 57, 68, 105 Harwood v. Goodright, Cowp. 88; S. C. 7 Bro. P. C. 344; 2 H. Bl. 937 55, 168 Hatch V- Sigman, 1 Dem. 519 - - - 43, 47, 48, 70,, 71, 80, 95, 137 Havard v. Davis, 2 Binn. 406 ' - 55 Hayball v. Shepherd, 43 Q, B. (Can.). 536 - - - 115, 116 Hayne v. Hayne, 1 t!ick. 18 38 Helyar v. H^lyar, 1 Lee, 473 - .... 54, 55, 80, 95 Hildreth v. Schillinger, 3 Stock. Ch. (N. J.) 197 - - 56, 93, 97, 144 Hilliard, Goods of, 36 L. T. 328 87 Hitchina v. Bassett, Comb. 90; S. C. 3 Salk. 592; 3 Mod. 203 - 168 1 Erroneously cited as Rhodes v. Vinson, 28 Md. 98., TABLE OF CASES CITED. 5 PAGE. Holden v. Meadows, 31 Wis. 284 63, 165 Holland V. Ferris, 3 Bradf. 384 80,81,165 Hook V. Pratt, 8 Hun, 103 .--.-.. 48, 167 Hope's Will, 48 Mich. 518 55, 163 Huble V. Clark, 1 Hagg. Eccl. 115 - - - - - 133 HuQgerford v. Nosworthy, Shower ;P. C), 146 - - - - 163 Hunt v. Hamilton, 9 Dana, 90 - - - - - - 40, 53, 166 Hunter v. Gardenhire, 13 B. J. Lea, 658 141, 144 Idley V. Bowen, 11 Wend. 327 - - 45, 46, 61, 80, 103, 171, 173, 176, 178 Jackson'v. Betts, 6 Cow. 337 - ... 68, 76, 78, 93, 100 Jackson v. Betts, 9 Cow. 208 - 168 Jackson v. Hosbrouck, 13 Johns. 193 ,-.--.. 77 Jackson V. Jackson, 4 Mo. 310 - - . - . 36,154 Jackson v. Kniffen, 3 Johns. 31- ----97 Jacksbn v. Lucett, 3 Cai. 363 - - - - ... 107 Jackson v. Vail, 7 Wend. 135 68, 136 Jackson v. Vickory, 1 Wend. 400; S. C. 19 Am. Dec. 533 - - 65 Jaques v. I^orton, 76 Ala. 238 36, 64, 83, 108, 107, 115, 132, 145, 148, 171 Johnson v. Lyford, L. E. 1 P. & D. 546 - . - , 115, 116 Johnson's Will, 40 Conn. 587 - - 56, 86, 131, 145, 153 Johnston v. Fry, 1 Coldw. 100 - - 146 Jones V. Murphy, 8 W. & S. 375 - - - - 55, 75, 80, 95, 163 Kaster V. Kaster, 53 Ind. 531 - .... -58,61. Kearns v. Kearns, 4 Harr. (Del.) 83 133 Keenv. Keen, L. R. 3P. &D. 105; S. C. 43L. J. (P. &M.)61 - 79 Kent V. Harcourt, 33 Barb. 491 - - - - - - 135 Ken-ich V. Bransby, 3 Bro. P. C. 358; S. C. 7 Bro. P. C. by Tom- ley, 437 - 34 Kidder's Estate, 57 Cal. 383 - - - ' 59 Kidder's Estate, 66 Cal. 487; S. C. 6 Pac. Rep. 326 - 60, 145, 169 Kitchens v. Kitchens, 39 Geo, 168; S. C. 99 Am. Dec. 453 93, 131, 147 Knapp V. Knapp, 10 N. Y. 376 - - - -76, 80, 83, 94, 96, 101 Knight V. Cook, 1 Lee, 413 - - 85 Lawrence v. Kete, Aleyn, 54 - . - . . 154^ igO Lawrence v. Norton, 45 Barb. 448 66 Lawyer v. Smith, 8 Mich. 411 ; S. C. 77 Am. Dec. 460 - 99, 169 Legare v. Ashe, 1 Bay (8. C), 464 - - - 44, 54, 55, 80, 83, 163 Lemon v. Reynolds, 5 Munf. 553 ------- 36 Lillie V. Lillie, 3 Hagg. Eccl. 185 ----- - 80, 185 Limbrey v. Mason, 3 Com. Rep. 453 84, 98 Loxley v. Jackson, 3 Phil. 136 80, 95, 101 b TABLE OF CASES CITED. PAGE. McBeth V. McBeth, 11 Ala. 596 36, 58, 80, 96; 105, 136, 188, 139, 180 McNally v. Brown, 5 Eedf. 373 - - 74, 134, 146, 147, 153, 180 Mahood v-. Mahood, 8 Ir. Eq.- 359 64, 74, 104, 133 Harriot v. Harriot, Gilb. Eq. 303; S. C. 1 Str. 666 - - - - 26 Harsh, Hatter of, 45 Hun, 107 - ... 73, 80 Hartin v. Laking, 1 Hagg. Eocl. 344 - - - - - 185 Hauk V. Helton, 64 Ind. 414 - - - - 49 Hedlycott v. Asheton, 3 Add. 339 - .... 63 Hercer v. Hackin, 14 Bush, 434; S. C. 1 Am. Prob. Rep. 399 56, 71, 73, 80, 136, 139, 140, 169 Hinkler v. Hinkler, 14 Vt. 135 - - - - 80, 83 Montefiore v. Honteflore, 3 Add. 354 - - - 154 Hoore v. Whitehouse, 3 Sw. & Tr. 567 ; S. C. 34 L. J. (P. & D.) 31 ; 11 L. T. 458 - - ... . 134 Horningstar v. Selby, 15 Ohio, 345 ; S. C. 45 Am. Dec. 579 - - 30, 34 Horris v. Swaney, 7 Heisk. 591 - 56, 64, 74, 76, 103, 104, 106, 131, 141, 146, 147, 148, 173, 178, 179 Mosely v. Carr, 70 Geo. 333 ,- ... 39, 69, 183 Hyers v. O'Hanlon, 13 Rich. (S. C.) 196 - - - - 36, 54 Hynn v. Robinson;, 3 Hagg. Eccl. 169 .... 87 Nelson v. HcGiffert, 3 Barb. Ch. 158 ; S. C. 49 Am. Dec. 170 35, 163 Nelson v. Whitfield, 83 N. C. 46 - - - 75, 115, 134, 141 Netter V. Brett, Cro. Car. 395 - - - 33 Newell V. Homer, ISOHass. 377 - 36, 56, 57, 103, 104, 130, 131, 134, 153, 174 Onions v. Tyrer, 1 P. Wms. 343 - .... 98 Page V. Haxwell, 118 111. 579 ; S. C. 8 N. E. Rep. 853 - 64, 65, 87, 93, 136, 144 Patten, V. Patten, 1 Sw. & Tr. 55; S. C. 4 Jur. (N. S.) 341; 37 L. J. (P. & H.) 41 - - - - - - - 75, 83, 85 Patterson v. Hickey, 33 Geo. 156 - - - - 85 Payne's Will, 4 T. B. Hon. 432- - - - 36, 40, 64 Pechail, Goods of, 6 Jur. (N. S.) 406 - ..... 99 Pembel'ton v. Pemberton, 13 Ves. Jr. 290 - - 41, 98, 139 Pinhallow v. Robinson, 3 Hagg. Eccl. 189, note .... 109 Pinney v. Hunt, 6 Ch. Div. 98 - - - - - 165 Podniore v. Whatton, 3 Sw. & Tr. 449; S. C. 33 L. J. (P. & H.) 143; 13 W. R. 106; 10 L. T. 754 - - - 64, 104, 106, 166 Priestman v. Thomas, L. R. 9 P. D. 310; S. C. 53 L. J. (P.) 109; 51 L. T. 843; 33 W. R. 842; affirming L. R. 9 P. D. 70; S. C. 53 L. J. (P.)58 - - - 165 Pye, Ex parte, 18 Ves. Jr. 148 140 xAi^ijjjj ur u^ohio KjLijijU, PAGE. Quick V. Quick, 3 Sw. & Tr. 442; S. C. 83 L. J. (P. M. & A.) 146 134, 127 Quinn v. Quinn, 1 T. & C. 487 - - - - ' - - - - 98 Reed's Will, 3 B. Mod. 80 - - 165 Reeves v. Booth, 3 Mills (S. C), 334; S. C. 13 Am. Dec. 679 - 85, 105 Eegina v. Johnson, Dears. & B. 340 76, 77 Rhodes v. Vinson, 9 Gill, 169 - - - - - - 147 Rhodes v. Vinson, 28 Md. 98 ' - ... 135 Richards V. Mumford, 3- Phil. 23 , 9S Rider v. Legg, 51 Barb. 360 ----- - 66 Ripley, Goods of, 1 Sw. & Tr.' 68; S. C. 4 Jur. (IST. S.) 343 - 71, 119 Rogers v. Stevens, 8 Ind. 464 - - - - - - 49 EusseU V. Hartt, 87 N. Y. 19 - - .... 63 Russell's Will, 33 Hun, 271 - - - - - 70 Sand's Case, 3 Salk. 33 - - - - - - - ' 22 Saunders v. Saunders, 6 N. of Cas. 519 - - - - 98 Schultz V. Schultz, 10 Gratt. 358 - - ... 165,166 Schultz V. Schultz. 35 N. Y. 653 - 48, 80, 93 Scoggins V. Scoggins, 93 N. C. 135; S. C. 3 So. Rep. 719 45, 74, 75, 80, 81, 87, 103, 175 Scruby v. Fordham, 1 Addatns, 74 - - - - 46 Sheridan v. Houghton, 6 Abb. N. C. 334 .... 146,153 Simpson, Matter of, 56 How. Pr. 135 ------ 36 Sinclair's Will. 5 Ohio St. 290 34, 135, ISO Skegga v. Horton, 82 Ala. 353; S. C. 2 So. Rdp. 110 - 133,145,154, 160, 179 Slade V. Street, 37 Geo. 17 - - - - 36, 38, 43 Sly V. Sly, L. R. 3 P. D. 91 ; S. C. 46 L. J. P, D. 63; 35 W. R. 463 73 Smith V. Wait, 4 Barb. 38 - 46, 49 Snider v. Burke, 84 Ala. 53; S. C. 4 So. Rep. 255 - - - - 99 South-worth V. Adams, 11 Biss. 356 - - 39,72,80,83,105,130,131 Sprigge V. Sprigge, L. R. 1 P. & D. 608 46 Staines v. Stewart, 3 Sw. & Tr. 320 '79 Steele v. Price, 5 B. Mon. 58 - - - - - 45, 85, 86, 160 Sugden v. Lord St. Leonards, L. R. 1 P. D. I|i4 ; S. C. 45 L. J. (P. & M.) 1 ; 34 L. T. (N. S.) 372; 24 W. R. 479; 17 Moak, 453 57, 72. 81, 91, 97, 103, 104, 114, 124, 136, 140, 148, 151, 155, 156, 160, 169, 182 Tagart v. Hooper, 1 Curteis, 289 - ----- 62 Thomas, feoods of, 20 W. R. 149 69 Thornton v. Thornton, 39 Vt. 132; S. C. 6 Am. L. Reg. 341 - - 05 Timon v. Claffy, 45 Barb. 438 - - - 46, 48, 56, 105, 170, 178, 179 1 Erroneous citation. Should be Hale v. Monroe, 28 Md, 98. O TABLE OF CASES CITED. PAGE. Townsend V. Townsend, 4Coldw, 70; S. C. 94Am. Dec. 184 - 37 Trevelyan v. Trevelyan, 1 Phil. 149 - - - - - 45 Tucker V. Phipps, 3 Atk. 359 .... 37, 41, 147, 153 Tucker V. Whitehead, 59 Miss. 594 - - - -. - 85,169 Tynan v. Paschal, 27 Tex. 286; S. C. 84 Am. Dec. 619 36, 68, 70, 11, 73, 93, 103 Vallance v. Vallance, 1 Hagg. 603 61 Vance v. Upson, 64 Tex. 266 175 Vining V. Hall, 40 Miss. 83 - - - - - 74, 131. 161 Voorheea v. Voorhees, 39 N. Y. 463 - - 4S, 59, 63, 64, 73 Voorhis v. Voorhis, 50 Barb. 119 ....-- 48, 79 Waggoner v. Lyles, 29 Ark. 47 .... 41, 183 Wallis V. Wallis, 114 Mass. 510 55, 153, 161 Wargent v. Hollings, 4 Hagg. Eccl. 245 80, 95, 103 Waters v. Stickney, 12 Allen, 1 - - - - - 30, 32, 166 Webb V. Cloverden, 2 Atk. 424 24 Weeks V. McBeth, 14 Ala. 474 - 85, 96, 97 Welch V. Phillips, 1 Moo. P. C. 299 80, 103 Weston, Goods of, L. R. 1 P. & D. 633 ... 97 Wharram v. Wharram, 3 Sw. & Tr. 301 ; S. C. 10 L. T. 103; 33 L. J. (P. M. & A.) 75 ; 10 Jur. (N. S.) 499 ; 12 W. E. 889 41, 54, 132, 135 White's Will, 25 N. J. Eq. 501 - 100 Whiteley v. King, 17 C. B. (N. S.) 756 .... 135 Wilbourn v. Shell, 59 Miss. 265 .... 1O6, 136 Wilkinson v. Robinson, 14 Jur. 72 164 Williams v. Baker, 5 Law Mag. 125 ...... 50 Wilmot V. Talbot, 3 H. & McH. 2 ; S. C. 1 Am. Dec. 374 - - 170 Wilson V. goUum, L. R. 9 Ir. 105 , 107 Wisener v. Maupin, 2 J. Baxt. 342 ^ . . . . 37, 136 Woodward v. Coulstone, 11 App. Cas. 462 ; S. C. 56 L. J. (P.) 1 ; 56 L. T. 790; 35 W. E. 337; 51 J. P. 307 - - 126,' 131, 147, 154 WyckofiE V. Wyckoff, 1 C. E. Gr. (N. J.) 401 56, 109, 115, 134, 144, 147, 169, 185 Youndt V. Youndt, 3 Grant, 140 - - - - . - 45, 74, 85, 86 Younger v. Duffle, 94 N. Y. 535 62 1 TABLE OF CASES ON LOST WILLS CITED IN OTHER CASES ON THE SAME SUBJECT. Adams v. Adams, 23 Vt. 59. Cited, 28 W. Va. 148 (S. C. 57 Am. Eep. 655). Allison V. Allison, 7 Dana, 90. Cited, 38 W. Va. 147 (S. C. 57 Am. Rep. 654); 52 Geo. 166 (S. C. 31 Am. Rep. 248); 5 B. Mod. 60; 7 B. Men. 416, Apperson v. Cottrell, 3 Port. (Ala.) 51 (S. C. 29 Am. Dec. 239). Cited, 28 W. Va. 153 (S. C. 57 Am. Rep. 658); 11 Ala. 599; 76 Ala. 243; 82 Ala. 355 fS. C. 2 So. Rep. 113). Appling V. Eades, 1 Gratt. 286. Cited, 11 Biss. 267. Bailey v. Stiles, 1 Gr. Ch. (N. J.) 220. Cited, 28 W. Va. 148 (S. C. 57 Am. Rep. 654); 37 Tex. 286 (S. C. 84 Am. Dec. 626); 52 Geo., 163 (S. C. 21 Am. Rep. 348). Baker v. Dobyns, 4 Dana,. 330. Cited, 5 B. Mon. 60; 7 B. Mon. 416; 3 Dana, 435. Barber's Goods, L. R. 1 P. & D. 367 (S. C. 36 L. J. (P. & M.) 19). Cited, 8 Ir. Eq. 486. Barnes v. Edwards, 17 B. Mon. 640. Doubted, 11 Bush, 336. Baumgarten v. Pratt (not reported, but decided in 1796). Cited, 3 Hagg. 339. Beal V. Cunningham, 3 B. Mon. 390. Cited, 5 B. Mon. 60, 68, 73; 7 B. Mon. 416. Beauchamp's Will, 4 B. Mon. 863. Cited, 7 B. Mon. 416; 5 B. Mon. 60. Bennett v. Sherrod, 3 Ired. (N. C.) 303. Cited, 98 N. C. 137 (S. C. 3 S. E. Rep. 720). Betts V. Jackson, 6 Wend. 173. Cited, 11 Wend. 336; 10 N. Y. 278; 35 N. Y. 655; 2 Bradf. 384; 17 Abb. N. Cas. 335 (S. C. 4 Dem. 61); 45 Hun, 108; 1 Dem. 530; 110 N. Y. 486 (S. C. 18 N. E. Rep. 113),; 33 Geo. 161; 8 W. & S. 301; 14 Ala. 4'i5; 13 Phil. 571; 3 Rich. (S. C.) 193; 14 Vt. 128; 35 La. Ann. 103; 11 Biss. 360, 367; 3 Port. (Ala.) 57, 63 (8. C, 29 Am. Dec. 243, 246). 10 TABLE OF CASES. Borlase v. B6rlase, 4 Notes of Cas. 106. Cited, 3 P. & D. 39 (S. C. 5 Moak, 531). Bowen v. Id!ey, 1 Edw. Ch. 148. (Reported in statement of case in 11 Wend. 227.) Cited, 8 Met. 488. Bowen v. Idley, 6 Paige, 46. Cited, 4 Dem. 55 (S. C. 17 Abb. N. Cas. 331);, 41 Barb. 393. Boyse v. Eossborough (sometimes cited Bosborough), 6 H. L. Cas. 3 (S. C. 3 De G. M. & G. 817). Cited, 38 W. Va. 143 (S. C. 57 Am. Eep. 650); 53 Geo. 160 (S. C. 21 Am. Rep. 346). Bowen v. Johnson, 5 R. 1. 112. Cited, 64 Tex. 369, 370. Brown v. Brown, 8 El. & Bl. 876 (S. C. 27 L. J. (Q. B.) 173 ; 4 Jur. (N. S.) 163). Cited, 130 Mass. 281; 11 Biss. 263; 134 Mass. 254; 3 Dem. 426; 1 Sw. & Tr. 110. Doubted, 3 Sw. & Tr. 303, 306. Brown v. Brown, 10 Yerg. 84. Cited, 8 Humph. 391 (S. C. 47 Am. Dec. 623); 4 Coldw. 83 (S. C. 94 Am. Dec. 193); 7 Heisk. 593; 35 La. Ann. 103. Brown v. Clark, 77 N. Y. 369. Cited, 1 Dera. 538. Buchanan v. Matlock, 8 Humph. 390 (S. C. 47 Am. Dec. 632). Cited, 7 Heisk. 593; 4 Coldw. 83 (S. C. 94 Am. Dec. 192); 13 Lea, 663; 2 J. Baxt. 854; 38 W. Va. 145, 148, 151 (S. C. 57 Am. Eep. 653, 658); 53 Geo. 163 (S. C. 31 Am. Eep. 248). Burt V. Burt, 1 Phil. 413. Cited, 9 Moo. P. C. 145. Burtenshaw v. Gilbert, Cowp. 49 (S. C. Lofft, 465). Cited, 3 Hagg. 329; 6 Wend. 192, 203; 1-T. & C. (N. Y.) 441. Campbell v. Logan, 3 Bradf. (N. Y.) 90. Cited, 13 Code (N. YO, 48; 45 Hun, 334 ; 13 Allen, 14 (S. C. 90 Am. Dec. 133) ; 5 R. I. 121. Campbell v. West, 3 B. Mon. 243. Cited, 5 B. Mon. 60, 63; 7 B. Mon. 416. Chapman v. Rodgers, 13 Hun, 343. Cited, 3 Dem. 436. Chisholm v. Ben, 7 B. Mon. 408. Cited, 14 Bush, 445 (S. C. 1 Prob. 408, 409); 37 Tex. 301 (S. C. 84 Am. Dec. 636); 83 Va. 782 (S. C. 1 S. E, Rep. 108). Doubted, 7 Heisk. 597. Distinguished, 83 N. C. 58. Clark V. Clark, 13 La. Ann. 138. Cited, 35 La. Ann. 90, 91. Clark V. Wright, 3 Pick. 67. Cited, 8 Met. 488; 13 Allen, 10 (S. C. 90 Am. Dec. 139); 13 Phila. 571; 38 W. Va. 151 (57 Am. Rep. 658); 35 La. Ann. 103. CoUigan v. McKernan, 3 Dem. 431. Cited, 4 Dem. 59 (S. C. 17 Abb. N. Cas. 334). Colton V. Boss, 3 Paige, 396. Cited, 41 Barb. 393. Colvin V. Eraser (sometimes Frasier), 2 Hagg. 266 (S. C. 4 Eccl. Eep. 113). Cited, 1 Lee (Eng.), 513; 3 Hagg. 185, note; 191, note; 1 Sw. & Tr. 60 (S. C. 4 Jur. (N. S.) 343; 37 L. J. (P. & M.) 43); 11 Biss. 360, 364, 366; 6 Wend. 185; 11 Ala, 601 ; 3 Rich. (8. C) 193; 1 Hagg. 117; 1 Dem. 530. TABLE OF CASES. 11 Croix V. Clark, 13 La. Ann. 177. Cited, 25 La. Ann. 90, 91. Cutto V. Gilbert, 9 Moo. P. C. 131. Cited, 3 Sw. & Tr. 304 (S. C. 10 L. T. 164 ; 10 Jur. (N. S.) 499 ; 13 W. E. 889 ; 33 L. J. (P. & M.) 75) ; 11 Biss. 263 ; 134 Mass. 254. Dalston v. Coatsworth, 1 P. Wms. 731. Cited, 53 Geo. 163 (8. C. 21 Am. Rep. 248); 28 W. Va. 145 (S. C. 57. Am. Rep. 652). Dan V. Brown, 4 Cow. 483 (S. C. 15 Am. Dec. 395). Cited, 6 Wend. 189, 198 ; 11 Wend. 602 ; 6 Cow. 383 ; 9 Cow. 230, 331, 323, 223 ; 45 Barb. 451 ; 51 Barb. 263; 45 Hun, 109, 110; 1 Dem. 527; 2 Dem. 426; 3 Bradf. 384; 26 N. Y. 437, 3 Port. (Ala.) 63, 64 (S. C. 39 Am. Dec. 346, 347) ; 83 Ala. 354 (S. C. 2 So. Rep. 113); 118 111. 578, 579 (S. C. 8 N. E. Rep. 853); 11 La. 130. Davis V. Davis, 2 Addams, 323 (S. C. 3 Eng. Eocl. Rep. 377). Cited, 3 Hagg. 184, note; 1 Sw. & Tr. 59 (S. C. 4 Jur. (N. S.) 341; 27 L. J. (P. & M.) 42); 3 Sw. & Tr. 305 (S. C. 10 L. T. 165; 10 Jur. (N. S.) 499; 12 W. R. 890; 33 L. J. (P. M. & A.) 78); 6 Wend. 185, 197, 202; 13 Phila. 568, 571; 11 Ala; 601; 8 Met. 488; 1 C. E. Gr. (N. J.) 405; 7 B. Mon. 416; 5 B. Mon. 60, 68. Davis V. Sigourney, 8 Met. 487. Cited, 120 Mass. 380, 381; 114 Mass. 512; 1 C. E. Gr. 405; 40 Conn. 589; 28 W. Va. 151 (S. C. 57NAm. Rep. 658); 40 Mias. 103; 82 Ala. 355 (S. C. 2 So. Rep. 113); 11 Biss. 267; 66 Cal. 491 (S. C. 6 Pac. Rep. 326; 5 W. C. Rep. 757). Distin- guished, 83 N. C. 53. Dawson v. Smith, 3 Houst. (Del.) 335. Cited, 11 Biss. 267. Day V. Day, 3 Gr. Ch. (N. J.) 549. Cited, 114 Mass. 512. Dickey v. Malechi, 6 Mo. 177 (8. C. 34 Am. Dec. 130). Cited, 12 Mo. 537; 48 Mo. 52; 50 Mo. 213; 1 C. E. Gr. (N. J.) 405; 2 Dem. (N. Y.) 436; 13 Phila. 571; 118 Bl. 578 (S. C. 8 N. E. Rep. 853); 76 Ala. 246; 82 Ala. 354, 356 (S. C. 3 So. Rep. 113, 114). Dickinson v. Stidolph, 11 J. Scott (N. S.) 341 (S. C. 11 C. B. (N. S.) 341). Cited, 83 Ala. 356 (S. C. 3 So. Rep. 114). Doe V. Palmer, 16 Q. B. 747 (S. C. 20 L. J. (Q. B.) 367; 16 Ad. & El. (N. S.) 747). Cited, L. R. 3 P. & D. 37; 2 Sw. & Tr. 329; 11 App. 'Cas. 479; 14 Bush, 434 (S. C. 1 Amer. Prob. Cas. 407); 73 Geo. 615; 118 III. 579 (S. C. 8 N. E. Rep. 858). Doe V. Perkes, 3 B. & A. 489. Cited, 6 Cow. 383. Durant v. Ashmore, 3 Rich. (S. C.) 184.- Cited, 11 Biss. 266. Durfee v. Durfee, 8 Met. 490, note. Cited, l20 Mass. 281 ; 40 Miss. 103. Eckersley v. Piatt, L. R. 1 P. & D. 281. Cited, 120 Mass. 281. Eighmy v. People, 79 N. Y. 546. Cited, 4 Dem. (N. Y.) 61 (S. C. 17 Abb. N. Cas. 335). Everitt v. Everitt, 41 Barb. 385. Cited, 51 Barb. 261 ; 4 Dem, (N. Y.) 58, 60 (S. C. 17 kbb. N. Cas. 333, 334); 7 Heisk. 597. Distinguished, 1 Dem. (N. Y.) 529. 12 ■ TABLE OF CASES. Fetherly v. Waggoner, 11 Wend. 599. Cited, 51 Barb. 361 ; 1 Dem, (N, Y.) 527; 2 Dem. 436; 25 La. Ann. 108. Finch V. Fiocli, L. R. 1 P. & D. 371. Cited, 120 Mass. 381. Foster's Appeal, 87 Pa. St. 67 (S. C. 30 Am. Rep. 340; 1 Amer. Prob. Cas. 435; Below, 18 Phila. 567; 34 Leg. Int. 323). Cited, 45 Hun, 112; 17 Abb. N. Cas. 833 (S. C. 4 Dem. (N. Y.) 58). ' Foster v. Foster, 1 Addams, 463 (S. C. 2 Eccl. Rep. 183). Cited, 3 Sw. & Tr. 305 (S.' C. 10 L. T. 165; L. J. (P. M. & A.) 78; 10 Jur. (N. S.) 500; 12 W. E. 890; 38 W. Va. 143 (S. C. 57 Am. Rep. 649); 11 Ala. 599; 82 Ala. 356 (S. C. 3 So. Rep. 114); 53 Geo. 163 (S. C. 81 Am. Rep. 349). Freeman v. Freeman, not reported, but cited in 3 Eagg. 388, 346 (1793). Cited, 1 Lee, 513, note; 6 Wend. 184, 197, 300. Gaines v. Chew, 8 How. .619. Cited, 34 How. (U. S.) 563; 18 Allen, 4, 14 (S. C. 90 Am. Dec. 124, 126) ; 28 W. Va. 151 (S. C. 57 Am. Rep. 657); 31 Wis. 289; 52 Geo. 163 (S. C. 31 Am. Rep. 848); 1 Wood (U. S.), 115; 35 La. Ann. 90. Distinguished, 15 Ohio, 365. Gaines v. Hennen, 34 How. 553. Cited, 1 Wood (U. S.), 115; 4 Wood, 335, 231; 17 Fed. Rep. 27; 8 McCrary, 487 (S. C. 6 Fed. Rep. 458); 6 Wall. 673, 697, 764; 12 Allen, 14 (S. C. 90 Am. Dec. 136); 64 Tex, 370; 38 W. Va. 151 (S. C. 57 Am. Rep. 657); 53 Geo. 162 (S. C. 81 Am. Rep. 848). Gaines v. New Orleans, 6 Wall. 642. Cited, 1 Wood (Ui S.), 115, 116; 17 Fed. R(-p. 487; 4 Wood (U. S.), 225, 230, 831, 334 (S. C. 17 Fed. Rep. 23, :;b, 27, 28); 85 La. Ann. 90; 39 Ark. 58. Gaines v. New Orleans, 15 Wall. 684. Cited, 4 Wood, 885, 830, 344 (S. C. 17 Fed. Rep. 23, 36, 35). Gaines v. New Orleans, 1 Wood (U. S.), 104. Cited, 4 Wood, 887 (S. C. 17 Fed. Rep. 80). Gaines v. Relf, 13 How. 473. Cited, 85 La. Ann. 96. Goodright v. Glazier, 4 Burr. 2513 (1770). Cited, 4 Cow, 490; 6 Wend. 189, 198; 1 Thomp. & C. (N. Y.) 441. Distinguished, 1 Lee, 463, note. Goodright v. Harwood, Lofft, 288, 558 (S. C. in various courts, 3 Wils. 497; Cowp. 87; 8 Wm. Black. 937; 7 Bro. P. C. 344). Cited, 3 Bin'. (Pa.) 420; 1 Bay, 465; 10 Gratt. 374; 6 Wend. 178, 190, 191, 194, 195, 200. Graham v. O'Fallon, 3 Mo. 507. Cited, 4 Mo. 211, 608; 3 Dem. (N. Y.) 436; 38 W. Va. 153 (S. C. 57 Am. Rep. 658). Graham v. O'Fallon, 4 Mo. 601. Cited, 6 Mo. 184 (S. C. 34 Am. Dec. 13.5). Grant v. Grant, 1 Sandf. Ch. 835. Cited, 17 Abb. N. Cas. 333, 334 (S. C. 4 Dem. 58, 60); 45 Hun, 118; 88 W. Va. 148 (S. C. 57 Am. Rep. 654). TABLE OF CASES. 13 Haines v. Haines, 3 Vern. 441. Cited, 53 Geo. 163 (S. C. 31 Am. Rep. 248); 8 Humph. 397 (S. C. 47 Am. Dec. 638); 28 W. Va. 145 (S. C. 57 Am. Eep. 653). Hall V. Gittings, 3 H. & J. (Md.) 113. Limited, 28 Md. 113. Hands v. James, Com. Eep. 531. Cited, 4 Cow. 489. Happy's Will, 4 Bibb (Ky.), 553. Cited, 4 T. B. Men. 438; 5 B. Mon'. 59; 28 W. Va. 153 (S. C. 57 Am. Rep. 658). Harper's Will, 4 Bibb (Ky.), 344. Cited, 7 B. Mon. 416. ' Harris v. Berrell, 1 Sw. & Tr. 153. Cited, L. E. 1 P. & D. 609. Harris v. Harris, 86 Bapb. 88. Cited, 45 Barb. 445; 1 Dem. 531 ; 3Dem. 435. Harris v. Harris, 26 N. Y. 433. Cited, 2 Dem. 425, 436 ; 9 Hun, 497. Harris v. Tisereau, 53 Geo. 153 (S. C. 31 Am. Eep. 243). Cited, 28 W. Va. 143, 148 (S. C. 57 Am. Rep. 650, 655). Hatch V. Sigman, 1 Dem. 519. Cited, 110 N. Y. 486 (18 N. E. Rep. 113). Havard v. Davis, 3 Binney (Pa,), 406. Cited, 13 Phila. 568, 571 ; 3 Dem. 436, Harwood v. Goodright, Cowp. 87 (S. C. 3 Wils. 497). Cited, 9 Cow. 223, 334; 6 Wend, 178, 180. Headington v, HoUoway, 3 Hagg. 380. Cited, L. E. 1 P. & D. 475. Helyar v. Helyar, 1 Lee, 473. Cited, 1 14 Mass. 513 ; 11 Biss. 263 ; 2 Dem. "(N. Y.) 426; 9 Moo. P. C. 144, 145. Henfrey v. Henfrey, 3 Curt. 468 (S. C. on appeal, 4 Moo. P. C. 38). Cited, 9 Moo. P. C. 146. ' Hitchins V. Bassett, 3 Mod. 203 (S. C. 1 Show. 537; 2 Salk. 593; Comb, 90, 209). Cited, 1 Lee, 509; 10 Gratt. 374; 3 Barb. Ch. 165 (S. C. 49 Am. Dec. 173). Holland v, Farris, 2 Bradf. (N. Y.) 334. Cited, 11 Biss. 366; 76 Ala. 245, Hope's Will, 48 Mich. 518 (S. C. 13 N. W. Rep. 682). Cited, 118 111. 579 (S, C. 8 N, E. Rep. 853). Huble V. Clark, 1 Hagg. 115 (8. C. 3 Eng. Eccl. Rep. 52). Cited, 3 Sw. & Tr. 306 (S. C. lO L. T. 164; 10 Jur. (N, S.) 500; 13 W. R. 890; 33 L. J, (P. M, & A.) 78); 28 W. Va. 143 (S. C. 57 Am. Rep. 649); 40 Miss. 103; 130 Mass. 383; 53 Geo. 163 (S. C. 21 Am. Rep. 349); 8 Met. 488. Hungerford v. Nosworthy, Shower, P. C. 146. Cited, 3 Barb. Ch, 165 (S, C, 49 Am, Dec, 174), Idley V, Bowen, 11 Wend. 237, Cited, 35 N. Y, 655; 10 N, Y, 278; 45 Hun, 108; 17 Abb, N. Cas, 331 (8. C. 4 Dem. 55); 11 Biss. 265; 8 Met, 488; 120 Mass, 281 ; 3 Port. (Ala.) 58, 61 (8, C. 39 Am. Dec, 345, 247); Idley V, Bowen, 1 Edw, Ch, (N, Y,) 148. Cited, 17 Abb. N. Cas, 331 (8, C. 4 Dem. 55). 14 TABLE OF CASES. Jackson v. Betts, 6 Cowen, 377. Cited, 3 Dem. (N. Y.) 426; 45 Hun, 110: 9 Cowen, 207; 6 VVwd. 200: 26 N. Y. 437; 7 B. Mon. (Ky.) 414. Distinguished, 9'Cow, 230, 221 ; 32 Geo. 1(11. Jackson v. Betts, 9 Cow. 308 (reversed, 6 Wend. 173). Cited, 45 Hun, 110; 3 Bradf. (N. Y.')384; IJ Ala. 601; 2 RicW. (8. C.) 193; 11 Biss. 267. Jackson v. Hasbrouck, 13 Johns. 192. Cited, 11 Wend. 602 ; 6 Cow. 383 ; 4 Cow. 491 ;' 3 Hawks (N. C.), 371. Jackson v. Jackson, 4 Mo. 210. Cited, « Mo. 184 (S. C. 34 Am. Dec. 135); 82 Ala. 356 (S. C. 2 So. Rep. 114;. Jackson v. KnifiCen, 3 Johns. 31. Cited, 6 Cow. 383; 45 Hun, HI; 32 Geo. 161, 163, 163. Jackson v. Le Grange, 19 Johns. 386. Cited, 3 Dem. (N. Y.) 426; 26 N. Y. 437; 118 111. 579 (S. C. 8 N. E. Rep. 853), Jackson v. Vickory, 1 Wend. 406. Cited, 118 111. 578 (S. C. 8 N. E. Rep. 85.3). Jaques v. Horton, 76 Ala. 338. Cited, 83 Ala. 354 (S. C. 3 So. Rep. 113). Jauncey v. Thorne, 3 Barb. Ch. 40. Cited, 118 111. 579 (S. C. 8 N. E. Rep. 853). Johnson's Will, 40 Conn. 587. Cited, 130 Mass. 282; 45 Hun, 113; 11 Biss. 267; 66 Cal. 491 (S. C. 6 Pac. Rep. 329; 5 W. C. Rep. 757); 82 Ala. 355 (S. C. 2 So. Rep. 113); 134 Mass. 258. Johnston v. Fry, 1 Coldw. (Tcnn.) 100. Cited, 7 Heisk. 596. Johnston v. Johnston, 1 Phil. (Eng.) 446. Cited, 7 B. Mon. (Ky.) 414; 6 Wend. 196, 203; 32 Geo. 159. Jones V. Murphy, 8 W. & S. 275. Cited, 13 Phila. 568. Kearns v. Kearns, 4 Harr. 83. Cited, 2 Dem. (N. Y.) 436. Keeling v. Ball, 3 East, 183. Cited, 11 Wend. 602, 603. Kellum, In re, .12 N. Y. 517. Cited, 1 Dem. (N. Y.) 538. Kitchens v. Kitchens, 39 Geo. 168 (S. C. 99 Am. Dec. 453). Cited, 70 Geo. 336 ; 73 Geo. 634. Knapp V. Knapp, 10 N. Y. 276. Cited, 45 Barb. 108, 110; 35 N. Y. 655; 1 Dem. (N. Y.) 531 ; 17 Abb. N. Cas. 335 (S. C. 4 Dem. (N. Y.) 61); 110 N. Y. 486 (S. C. 18 N. E. Rep. 11'2); 120 Mass. 283. Knight V. Cook, 1 Lee, 413. Cited, 3 Sw. & Ti-. 305 (S. C. 10 L. T. 100) : ■ 10 Jur. (N. S.) 500; 12 W. R. 890; 33 L. J. (P. JM. & A.; 78). Lamberts v. Coopers, 39 Gratt. 61. Cited, 118 111. 578 (S. 0. 8 N. E. Rep. 853). Lawrence v. Norton, 45 Barb. 448. Cited, 51 Barb. 361. Lawson v. Morrison, 3 Dall. 386. Cited, 6 Wend. 183, 191, 192; 134 Mass. 355; 2 Binney, 418. Lawyer v. Smith, 8 Mich. 411. Cited, 59 Miss. 606; 184 Mass. 258. TABLE OF CASES. 15 L?gare v. Ashe, 1 Bay (S. C), 464. Cited, 2 Rich. (S. C.) 193; 8 Met. 488; 53 Geo. 163 (S. C. 21 Am. Rep. 248); 6 Wend. 183, 19'?, 202; 2 Dem. (N. Y.)426; 38 W. Va. 148(8. C. 57 Am. Rep. 655; 4 T. B. Mon. 438; 5 B. Mon. 60, 68; 11 Biss. 366, 267. Lewis V. Lewis, 6 S. & R. (Pa.) 488. Cited, 27 T?ex. 303 (S. C. 84 Am. Dec. 637). Lillie V. Lillie, 3 Hagg. 184. Cited^ 11 Biss. 366; 3 Rich. (S. C.) 193. Limbry v. Mason, 3 Comyn, 451. Cited, 3 Hagg. 329. Loxley v. Jackson, 3 Phil. 126 (S. C. 2 Eng. Eocl. Rep. 875). Cited, 14 Vt. 138; 1 Dem. (N. Y.) 530; 6 Wend. 176, 184, 197, 303; 110 N. Y. 486 (S. C. 18 N. E. Rep. 118); 11 Biss. 363. McBeth V. McBeth, 11 Ala. 596. Cited, 14 Ala. 475; 76 Ala. 342; 11 Biss. 267; 25 La. Ann. 103. McNally v. Brown, 5 Redf. (N. Y.) 373. Cited, 1 Dem. (N. Y.) 530. Mead v. Langdon, not reported. Cited, 33 Vt. 59; 28 W. Va. 148 (S. C. 57 Am. Rep. 655); 53 Geo. 162 (S. C. 31 Am. Rep. 348). Minklerv. Minkler, 14 Vt. 135. Cited, 41 Vt. 60; 13 Phila. 568, 571, 573; 11 Biss. 267. Moore v. Moore, 1 Phil. 375. Cited, 9 Moo. P. C. 145; 6 Wend. 184; 134 Mass. 353. Morningstar v. Selby, 15 Ohio, 345 (S. C. 45 Am. Dec. 579). Cited, 5 Ohio St. 390, 391, 393. Denied, 38 W. Va. 149 (S. C. 57 Am. Rep. 655) ; 53 Geo. 163 (S. C. 31 Am. Eep. 248). Morris v. Swaney, 7 Heisk. 591. Cited, 83 Ala. 355 (S. C. 3 So. Rep. 113); 83 Va. 781 (S. C. 1 S. E. Rep. 108). Morse v. Slason, 13 Vt. 396. Cited, 33 Vt. 61. Nelson v. McGiifert, 3 Barb. Ob. 158 (S. C. 49 Am. Deo. 170). Cited, 50 How. Pr. 130; 114 Mass. 513; 134 Mass, 354. Distinguished, 3 Dem. (N. Y.) 434. Newell V. Homer, 130 Mass. 277. Cited, 11 Biss. 260, 267. Offutt V. Offutt, 3 B. Mon. (Ky.) 163. Cited, 5 B. Mon. 73. Parochial School, etc. v. Frazer, 3 Hagg. 613. Cited, 14 Ala. 475; 6 Wend. 186. Passey v. Hemming, not reported. Cited, 1 Phil. 439 ; 9 Moo. P. C. 146. Patten v. Ppulton, 1 Sw. & Tr. 55 (S. C. 27 L. J. (P. & M.) 41 ; 4 Jur. (N. S.) 341). Cited, 40 Conn. 588. Patterson v. Gaines, 6 How. 550. Cited, 13 How. 533. Patterson v. Hickey, 33 Geo. 156. Cited, 45 Hun, 113; 59 Miss. 607; 11 Biss. 260. Payne's Will, 4 T. B. Mon. (Ky.) 432, Cited, 5 B. Mon. 59; 7 B. Mon. 416; 9 Dana, 93, 16 TABLE OF CASES. Pemberton v. Pemberton, 13 Ves. 290. Cited, 2 Hagg,330, 346; 3 Bin- ney (Pa.), 433; 5 Rawle, 243 (S. C. 38 Am. Dec. 670). Plenty v. West, 1 Eobt. 364. Cited, 9 Moo. P. O. 146. Podmore v. Whatton, 3 Sw. & Tr. 449 (S. C. 33 L. J. (P. & D.) 143; 10 L. T. 754; 13 W. R. 106). Cited, L. E. 1 P. & D. 873. Powell V. Powell, L. R. 1 P. & M. 309. Cited, L. R. 1 P. & D. 285. Pye, Ex parte, 18 Ves. 140.' Cited, 3 Hagg. 347. Quick V. Quick, 3 Sw. & Tr. 443 (S. C. 83 L. J. (P. M. & A.) 146). Cited, 11 App. Cas. 479; 118 111. 579 (S. C. 18 N. E. Rep. 853). Reed's Will. 3 B. Mon. 80. Cited, 10 Gratt. 373. , Reeves v. Booth, 3 Mills (S. C), 334. Cited, 3 Dem, (K Y.) 436. Rhodes v. Vinson, 9 Gill (Md.), 169. Cited, 38 Md. 113; 40 Miss. 103; 1 C. E. Gr. (N. J.) 406. Richards v. Mumford, 2 Phil. S3. Cited, 1 Lee, 512, note; 6 Wend. 176, 184. Ripley's Goods, 4 Jur. (N. S.) 343. Cited, 14 Bush, 444 (S. C. 1 Amer. Prob. Cas. 407). Russell V. Hartt, 87 N. Y. 19. Cited, 45 Hun, 336, 338, 381 ; 13 Code Rep. (N. Y.) 38. Saunders v. Saunders, 6 Notes of Cas. 518. Cited, 1 Sw. & Tr. 61 ; 13 Grant, Ch.(U. P.).301. Schultz V. Schultz, 35 N. Y. 653. Cited, 8 Hun, 108; 50 Barb. 137; 9 Hun, 497; 110 N. Y. 486 (S. C. 18 N. E. Rep. 113); 17 Abb. N. Cas. 335 (4 Dem. 61); 1 Dem. (N. Y.) 530. Schultz V. Schultz, 10 Gratt. 358. Cited, 64 Tex. 369, 270; 5 E. I. 131. Sheridan v. Houghton, 6 Abb. N. Cas. 384. Cited, 1 Dem. (N. Y.) 530; 5 Redf. (N. Y.) 876. Shorter v. Sheppard, 33 Ala. 648; 83 Ala. 355 (S. C. 3 So. Rep. 113). Simpson, In re, 56 How. Pr. 135. Distinguished, 3 Dem, (N. Y.) 434. Slade V. Street, 37 Geo. 17. Cited, 53 Geo. 158, 162 (S. C. 21 Am. Rep. 345, 348). Smith's Will, 3 Houst. (Del.) 335. Cited, 11 Biss. 367. Smith V. Carter, 8 Rand. (Ya.) 166. Cited, 83 Va. 779 (S. C. 1 S. E, Rep. 106). Smith V. Wait, 4 Barb. 38. Cited. 45 Barb. 445. Stacey v. Dukins, not reported. Cited, 1 Phil. 415; 1 Lee (Eng.), 509, 513. Steele v. Price, 5 B. Mon. (Ky ) 58. Cited, 7 B. Mon. 416; 14 Bush, 447 (S. 0, 1 Amer. Prob. Cas. 409); 45 Hun, 118; 83 Ala. 854, 856 (S. C. 3 So. Rep. 113, 114); 69 Miss. 607. Stevens v. Brooke, Clarke, 131. Cited, 17 Abb. N. Cas. 383 (S. C. 4 Dem. (N. Y.) 58). TABLE OF CASES. 17 Stoddart v. Grant, 1 Macq. App. Cas. 163. Cited, 9 Moo. P. C. 147. Succession of Clark, 11 La. 124 (S. C. 4 Am. L..Reg. (O. S.) 365). Cited, 13 La. Ann. 140, 177, 179; 25 La. Ann. 90. Reviewed, 24 How. (U. S.) 5.55. Criticised, 27 Tex. 286 (S. C, 84 Am. Dec. 623). Sugden v. Lord St. Leonards, 1 P. D. 154 (S. C. 34 L. T. (N. S.) 372 ; 24 W. R. 479; 45 L. J. (P. & D.) 49; 17 Moak's Rep. 453). Cited, 45 Hun, 111 ; 118 111. 578, 579 (S. C. 8 N. E. Rep. 853, 853); 134 Mass. - 258; 11 Biss. 2G0, 265; 73 Geo. 618, 614, 618; 76 Ala. 245; 83 Ala. 356 (S. C. 3 So. Rep. 113)'; 14 Bush, 445(8. C. 1 Amer. Prob. Caa. 407). Doubted, L. R. 11 App. Cas. 474, 475, 478, 479, 480, 481, 481, ■ 485, 486. Sykes, Goods of, 3 P. & D. 26. Cited, 73 Geo. 633. Thornton's Case, 2 Curt. (Eng.) 9ia.- Cited, 8 Met. 488. Thornton v. Thornton, 39 Vt. 123 (S, C. 6 Am. L. R^g. 341). Cited, 118 111. 579 (S. C. 8 N. E Rep. 853). Timon v. Claffy, 45 Barb. 438. Cited, 8 Hun, 108; 1 Dam. (N. Y.) 531 ; 66 Cal. 490 (S. C. 6 Pac. Rep. 328; 5 W. C. Rep. 756). Trevelyan v. Trevelyan, 1 Phil. 149. Cited, 11 Wend. 233, 235; 1 C. E. Gr. (N. J.) 405: 1 Ed. Ch. (N. Y.) 163: 7 B. Mon. (Ky.) 416; 11 Ala. 599; 3 Port. (Ala.) 65 (S. C. 39 Am. Dec. 347). Tucker v. Phipps, 3 Atk. 359. Cited, 13 Rich. 300, 303; 9 Dana, 92; 53 Geo. 161, 168 (S. C. 21 Am. Rep. 247, 248); 8 Humph. 390 (S. C. 47 Am. Dec. 626). Tyler v. Gardner, 35 N. Y. 559. Cited, 39 N. Y. 467. Tynan v. Paschal, 37 Tex. 286. Cited, 59 Miss. 607. Vcorhees v. Voorhees, 39 N. Y. 463 (S. C. 50 Barb. 119). Cited, 8 Hun, 108; 28 W. Va. 148 (S. C. 57 Am. Rep. 654); 17 Abb. N. C. 333 (S. C. 4Dem. 58); 1 Dem. 521. Voorhis v. Voorhis, 50 Barb. 119 (S. C. 39 N. Y, 463). Cited, 8 Hun, 108. Waters v. Stickney, 12 Allen, 1. Cited, 64 Tex. 268; 28 W. Va. 151 (S. C. 57 Am. Rep. 657); 53 Geo. 163 (S. C. 21 Am. Rep. 248). Wallis V. Wallis, 114 Mass. 510. Cited, 'S Dem. (N. Y.) 426. Weeks v. McBeth, 14 Ala. 474. Cited, 11 Biss. 260, 267; 59 Miss. 607. Welch V. Phillips, 1 Moo. P. C. 29y. Cited, 1 Sw. &Tr. 60; 11 Biss. 263; 134 Mass. 253. Welch V. Welch, 2 T. B. Mon. 83. Cited, 118 III, 578 (S. C. 8 N. E. Rej.. 853). Wharram v. Wharram, 8 8w. & Tr. 301 (S. C. 10 L. J. 163; 10 Jur. (N. S.) 499; 12 W. R. 889; 83 L. J.- (P. M. & D.) 75). Cited, 3 Sw. & Tr. 446; I-. R. 1 P. & D. 478, 474. Contrasted, 8 Jr. Eq. 360, 305. Whitehead v. Jennings, not reported. Cited, 1 Phil. 413 ; 9 Moo. P. C. 145; 1 Lee (Eng.), 610, 611, 513. 2 IS TABLE OF CASES. Whiteley v. King, 17 C. B.' (N. S.) 756 (S. C. 10 Jur. 1079). Cited, 13 "'' Gr. Ch. (U. P.) 301 ; 45 Hun, 111 ; 134 Mass. 258.. Wilmot V. Talbot, 3 H. & McH. 3 (S. C. 1 Am. Dec. 374). Cited, 4 T. B. Mon. (Ky.) 428. Wilson V. Wilson, 3 Phil. 553. Cited, 6 Wend. 185, 197, 203; 134 Mass. 253. WyckoflE'v. Wyckoff, 1 C. E. Gr. (N. J.) 401. Cited, 2 C. E. Gr. 451. Youndt V. Youndt, 3 Grant (Pa.), 140. Cited, 13 Phila. 568; 59 Miss. 607. Younger v. DuflSe, 94 N. Y. 535 (S. C. 5 N. Y. Civ. Pro. 84; 28 Hun, 243). Cited, 13 Code Rep. 411, 413. Distinguished, 45 Hun, 327, 238. LOST WILLS. CHAPTER I. JURISDICTION. Sec. 1. Introduction. — Perhaps there is no more satis- factory way of discussing the jurisdiction of courts to es- tablish wills and admit them to probate than by making liberal quotations from a number of decisions on the sub- ject. The writer has adopted this method chiefly in this chapter, knowing that the profession prefer the language of the court to a resume of or statement of the conclu- sions of the court. Naturally in adopting this plan there will be some" objections; but this may aid somewhat in obtaining a clear view of the questions. First in order is a discussion of the jurisdiction of the English courts at as early a period as historical research throws any light upon the subject. A careful consideration of this historical view is essential to a clear understanding of the question under discussion. Sec. 2. Jurisdiction — Historical — Ecclesiastical court — Wills of realty and personalty. — " It must be borne in mind that a will of personalty and a testament of lands are very different things, proven in different tribunals [in England], subject to different rules of construction, and their execution enforced by different mandates — the one controlled and executed by the common and civil law and the other by the common law; the power to make the one, existing from time immemorial, and the other, only from the passage of the statute of wills, 32 and 34 Henry YIII. Mr. "Williams says, on the first page of his work on exec- utors: 'Although from the time of the Norman Conquest 20 LOST WILLS. until the passing of the statute of wills, 32 and 34 Henry VIII., a subject of this realm had, generally speaking, no testamentary power over land; yet the power of making a will of personal property appears, to have existed and con- tinued from the earliest .period of our law.' The probate of wills for personalty is at present of exclusive ecclesias- tical jurisdiction, and how it becomes so is not difficult to ascertain ; that it was not always so, we think may be sat- isfactorily shown. Mr. Williams, in his treatise on exec- utors,' says : 'It appears to have been a subject of much controversy, whether the probate of wills was originally a matter of exclusive ecclesiastical jurisdiction ; but whatever may have been the case in earlier times, it is certain that at this day the ecclesiastical court is the only court in which, except by special prescription, the validity of wills of personalty can be established or disputed.' The reason of this is, we think, obvious. "In ancient times when a man died without making any disposition of his testable goods, the king ov parens patrice, having the supreme care to provide for all his subjects, seized the goods of the intestate to the intent that they would be preserved and disposed of for the burial of the deceased, the payment of his debts, to advance his wife and children, if he had any, and if not, those of his blood. The prerogative was exercised by the king through his min- isters of justice, most probably in the county court, where matters of all kinds were determined.- No doubt at that time the probate of wills was also had in the county court ; for inasmuch as the king, by virtue of his prerogative, was enti- tiled to administer through the court the effects of all intes- tates, it would be required that wills should be proven in the court in order that it might be known when he was ousted of this prerogative By a will, and that no fraud should bo perpetrated upon it by setting up a false and supposititious will. Afterwards the crown, in favor of the church, in- vested prelates with this branch of the prerogative,' whicli 1 Page 157 [388]. ^ Wms. Ex. 237 [401]. JCTEISDICTION. 21 they so grossly abused that it became necessary to enact various statutes to compel them to disgorge the effects of intestates seized by them under this branch of the preroga- tive and appropriated to their own use. History infoi-ms us how jealous these prelates were at all times of the inter- ference of the temporal courts in their affairs, and again and again involved the country in serious conflicts in assert- ing the right to have all matters concerning the clergy ad- judicated in their own courts, or without appeal except to Bome. " It then cannot be a matter of much doubt that after they became invested with the prerogative of administering the effects of intestates, they would do so through the spirit- ual courts, and that they deprived the county courts of the _ jurisdiction exercised previousl}'^ thereon ; and that they also, with a view of protecting the enjoyment of this prerogative, drew from the county courts the probate of wills, and vested it likewise in the ecclesiastical courts. The same feelings would of course at all times cause them to watch with assiduity any attempt on the part of the temporal courts to assume jurisdiction upon this subject ; and hence the principle which is now so well established in England: that the ecclesiastical court is the only court in which (ex- cept by special prescription) the validity of wills of person- alty can be established or disputed. But ecclesiastics had nothing to gain in the case of intestacy as to real estate; thei-e was no administration to be granted upon it; it de- scended to the heir at law ; and the barons of England, with their innumerable feudal prerogatives on the lands of minors, would never have submitted them to the tender care of the priests. Hence the probate of testaments of land has never been allowed to the ecclesiastical courts, but has been strictly retained by the temporal courts. ''The ecclesiastical courts have no jurisdiction over wills of land only; therefore, if they attempt to proceed in prov- ing them by compulsion, a prohibition lies.^ Formerly a 1 Powell on Devises, 636, 22 LOST WILLS. prohibition was granted absolutely where lands and chat- tels were disposed of by the same will; afterwards it was granted only as to the lands. But now it does not go as to either; for where a will is concerning lands and goods, and , is one entire will, it shall be proved in the^ spiritual court to enable the executor to sue for debts, which otherwise might be lost, and to expedite the payment of legacies, Avhich, if it were not so, might be longer delayed, and the will consequently unperformed. Besides, as to granting prohibition quoad the land, it is vain; for the probate of the will for the land cannot prejudice the heir, because it is no evidence at common law, it being as to lands, coram, non jiudice} So much for the probate of wills and testa- ments in England where they are in existence and can be produced. Sec. 3. Lost will — Courts of equity. — " But let us see how it is where they have been lost, or suppressed, or de- stroyed. It would be very clear, upon the principles already stated, that the}'^ could not be set up as to realty in the ecclesiastical courts; for this would be to permit them to do without the will what they could not do with it. But in relation to personalty the rule is different. For it is laid down by Swinburn, 'that if a testament be made in writ- ing, and afterwards lost by some casualty; if there be two unexceptionable witnesses who did see and read the testa- ment written, and do remember the contents thereof, these two witnesses so deposing to the tenor of the will are suf- ficient for the proof in form of law. In which case the court will grant probate of the will as contained in the depositions of the witnesses ; ' ^ and Mr. Williams says ' ' that at this day it is quite clear that the contents or substance of a testamentary instrument may be thus established, though the instrument itself cannot be produced, upon 1 Sir George Sand's Case, 3 Salk. ■! Swinb. 3 s., pt. 14, pi. 4. 23 ; Habergham v. Vincent, 3 Ves. 3 Page 309 [379] of his work on 230 ; Netter v. Brett, Cro. Car. 395 ; executors. Wms. Ex. 316 [390]. JUEISDICTION. 23 satisfactory proof being given that the instrument was duly made by the testator^ and was not revoked by him; but where allegations of this sort are made, they must be sup- ported by the clearest and most stringent evidence.' From these authorities it is clear that a lost, destroyed or sup- pressed will, for personalty, may be set up in the spiritual courts, provided a proper case be made out, upon the clear- est and most stringent evidence ; but do they prove that a court of chancery may not, in such case, also give relief? Most assuredly not. And though we are by no means satis- fied that the court of chancery in England can give relief in such case, j^et we are not prepared to say it cannot. The jurisdiction of the court in cases of a similar character is so well fixed, and it is so appropriate a tribunal for such re- lief, that we have no hesitation in saying that if it do not exist it is because of the jealousy entertained of the inter- ference of that court by the ecclesiastical courts, and not because there is not a fitness of things in entertaining the jurisdiction. Indeed, we have been able to find no case in which it has been held not to exist. It is decided by that great luminary of equity learning. Lord Hardwicke, in the case of Tucker v. Phipps,' ' that if a will be destroyed or concealed by the executor, if it is proven plainly, a legatee may go to a court of equity for a decree upon the head of spoliation or suppression, although the general rule is to cite the executor into the ecclesiastical court.' "Now, wiiat is to be found in the books against this au- thority? The principle is well established by a train of decisions that a court of equity will not set a will aside upon the suggestion of fraud or imposition in making the will; then it is not his will, and this is a question of fact.^ And this is all that Mr. Story is able to make out of the decisions, after an elaborate review of them in note 1 to his chapter on actual or positive fraud, in the last edition ^ of his work on equity jurisprudence. For he says; ' Whether 1 3 Atk. 360. * This opinion was written in aPowellonDev. 626. 1847. 24 ' LOST WILLS. a court of equity could interpose and relieve against fraud practiced in obtaining a will appears to have been formerly a point of considerable doubt; in some cases we find the court of ciiancery distinctlj'^ asserting its jurisdiction. But since the cases of Kerrich v. Bransby ' and "Webb v. Clover- den ^ it appears to have been settled that a will cannot be set aside for fraud or imposition, because it may be set aside for that cause in the ecclesiastical court; for in such a case the miimus testandi is wanting, and it cannot be con- sidered as a will.' But he has produced no case which holds that a suppressed, lost or destroyed will may not be set up in a court of chancery. And indeed, although a will cannot be set aside in chancery for fraud or imposition in its procurement; yet it is laid down in Powell on Devises,' and well sustained by authority, ' that there is no material dis- tinction between a court of equity taking upon itself to set aside a will on account of fraud, etc., in obtaining or mak- ing it, and its taking from the party the benefit of a will which he procured to be made on a confidence that binds the conscience of the devisee, the breach of which confidence is considered in courts of equity as fraudulent. For this is a ground of equity distinct from tliat over the will itself, the existence of which is not in such case controverted, as it would be were they to decide upon questions of fraud, san- ity, forger}^, or the like; in either of which cases it is no will. In the former case equity does not set aside the will, but decrees the devisee to hold for the benefit of the party aggrieved.' So that all the cases in which a court of chan- cery is prohibited from acting are where an attempt is made to set aside the will, and not to set it up. But be this as it may in relation to wills for personalty which have been lost, suppressed or destroyed, there is no question but that the court, of chancery in England has the jurisdiction in such case to set up a will for realty. It cannot be set up anywhere else; it is a muniment of title, and must be 1 3 Bro. P. C, 358; S. C. 7 Bro. 2 3 Atk. 424. P. C. by Tomley, 437. , ^Page 630. JURISDICTION. 25 produced on a trial at law, which cannot be done if it be not in existence. It cannot, as we have seen, be set up in the ecclesiastical courts, for they had no jurisdiction of such will, and a probate of it there is coram non judice. Then, if it cannot be set up in the court of chancery, the devisee must lose his land. "It is said in Powell on Devisees^ to be usual, where a title depends on a will, to prove it in chancery against the heir; and in the case of Haines v. Haines'^ it was held 'that where an uncle having devised his real estate to distant re- ■ lations, and disinherited his nephew and heir at law, and a younger brother of the heir at law, at the funeral, snatched the will out of the hands of the executor and tore it into small pieces, and most of the pieces, particularly those wherein the devise of the lands was, were picked up and joined together again, it was decreed, on bill to have the will established, the devisees should hold and enjoy against the heir, and that he should conve}', although there was no proof that the heir directed the tearing of the will." From the hasty and imperfect view of this subject, it will be seen that in England the probate of wills for personalty is con- fined to the ecclesiastical courts ; that the probate of wills for realty is confined to the .courts of law when brought forward as a muniment of title, or to the chancery court when it is sought to be proven against the heir; that where a will for personalty is lost, suppressed or destroyed, it may upon clear and stringent proof be set up in the ecclesi- astical courts, and that it is doubtful whether it may not be in the chancer}' court. But that a will of realty which is lost, suppressed or destroyed can only be set up in the chancery court." ^ 1 642. tation approved, in Dower v. 3 3 Vern., 441. Seeds, ;28 W. Va. 113 (1886) ; S. C. 3 Powell on Dev. 589. 57 Am. Rep. 646. and additional vv i.Xii4 iu.a.x xiiL irsA\j\ HjU, that it could not " would open the door to knavery and fraud, and place it in the power of the dishonest to frustrate ttiat disposition which every man has a right to make of his own property."^ "There can be no possible doubt as to the validity of a will or codicil executed, although it be destroyed in the life-time of the testator, if so destroyed by fraud or mistake and without his consent. And if it was not intended to be destroyed by him, and is virtually in esse at the time of his death, the rights of the legatees or devisees under the will cannot be changed by any loss, de- struction or suppression of the testamentary paper, pro- vided the contents thereof can be sufficiently ascertained to preserve and enforce their rights in a court of justice." ' This is a fair .proposition ; but there are authorities that a will, unless it is shown to have been in existence at the death of the testator, cannot be proved in case of a mere loss. Thus in a very early case a will was cut in pieces by rats. A stranger by laying the pieces together could not make out the devise and the devisee's name, but one having knowl- edge of its contents could. In an action of ejectment, where the will was relied upon, it was said that if the will was gnawed before the testator's death it was not provable nor a good will; jf after, it was. Under these instructions the jury found for the will.' But these cases are not regarded as the best considered. Sec. 19. Testator's knowledge of destruction. — If the testator know that his will was lost or destroyed there is grave doubt whether it can be established or probated. In one case it is said that his knowledge is said to pre- vent it;* in another that it does not necessarily prevent it.' On this subject the true rule undoubtedly is that it • 1 Dickey v. Malechi, 6 Mo. 177 Mon. 58(1844); Idley v. Bowen, 11 (1839); S. C. 34 Am. Dec. 130. ' Wend. 327, 333 (1833). 2 Betts V. Jackson, 6 Wend. 173, ^ Etheringham v. Etheringham, 180 (1830); Trevelyan v. Trevelyan, Aleyn, 3 (1647). 1 Phil. 149(1810); Scogginav. Tur- < Dawson v. Smith, 3 Houst. ner, 98 N. C, 135 (1887); S. C. 3 S, (Del.) 335 (1866). E. Eep. 719; Steele v. Price, 5 B. SYoundt v, Youndt, 3 Grant (Pa.), 140 (1861), 46 LOST WILLS. can or cannot be established or pi-obated according to tb circumstances. Thus, if knowledge of the destruction wa not brought home to the testator a reasonable length c time before his death to enable him to replace it by the e: ecution of another will, and he had not full opportunity t do so, — not being sufficiently well and able to undertak its execution; or if he expressed his intention of still adhei ing to the terms of the destroj'ed will, however long th interval between the time of its destruction afid his deatl so that it was not an unreasonable length of time, the wi ought to be established ; but if he had an opportunity t replace it and did not do so, if he expressed gratification, o by words expressed his acquiescence in its destruction, i ought not to be probated or established. This the write tliinks is the true rule upon this subject. Sec. 20. Destroyed while insane. — A testator while ir sane cannot destroy or revoke his will so as to prevent it probate or establishment; and if he destroy the paper which it is written it may be set up as any other lost o destroyed will.^ Thus it has been said: " It may, howevei be Uiat tlie testator was at that time equally incompetent t revoke as he was to make a will. If so, the burning of th paper would not be a revocation, because it could not,be cor sidered as done animo revocandi." ^ If the testator becam insane after the destruction of the will and remained s until his death, the burden of showing: that he destroyed i in a lucid interval is upon those opposing its probate.^ S< the execution of a will revoking his former will, by an, ir sane person, does not revoke it.* Sec. 21. Destruction not amonnting to a revocation.- So if a will is accidentally destroyed, obliterated or car iForbing v. Weber, 99 Ind. 588 ^j^iej' y, Bowen, 11 Wend. 2Z 11884); Soruby v. Fordham, 1 Ad- 233(1833); Smith v. Wait, 4 Bar! dams, 74 (1833); Foreman's Will, 38(1848). 54 Barb. 374 (1869): Apperson v. aSprigge v. Sprigge, L. R. 1 I Cottrell, 3 Port. (Ala.) 51 (1836); & D. 608 (1868). S. C. 39 Am. Dec. 339; Timon v. « Smith v. Wait, supra. Claffy, 45 Barb. 438 (1865). » ±I-4XJ J.TJ.XXX ±>Jli X~X\i\J y HlJJt celed, it may be probated/ subject to the rule heretofore stated.^ In those jurisdictions where a will cannot be re- voked by the testator's tearing it up, if he do so, and does no other act toward its revocation, it may be probated at his death.' Sec. 22. Fraudulent destruction.— The statutes of many states provide specifically for the probate or establishment of a will which has been fraudulently destroyed in the life- time of the testator.^ In defining what is a fraudulent construction, it was said in Kentucky that " it is well settled that to destroy or suppress a written instrument for the purposes of hindering or defeating the rights of others, however innocent the motive, is at least a constructive fraud upon the rights of such persons." ' In a New York case, commenting on this branch of our subject, the court of appeals said: "If the will was not in existence at the time of the testator's death, then it follows equally clear that it must have been fraudulently destroyed in his life- time or lost. The fraud mentioned and referred to in this connection is a fraud upon the testator, by the de- struction of his will, so that he should die intestate, when he intended and meant to have disposed of his estate by will, and never evinced any change of that intent. It is undeniable from the facts in the record that either this will was in existence at the time of the death of the testator, without his knowledge, consent or procurement, or acci- dentally lost. If so destroyed, it was done fraudulently as to him, and, in judgment of law, the legal results are the same precisely as if it had continued in existence up to the- time of his death; In either contingency it was his last will and testament; and the loss or destruction, either by iBeauchamp'sWil], 4T. B. Mon. * Hatch v. Signian, 1 Dem, 519 361(1837). (1883); Bulkley v. Redmond, 3 2 Sec. 19. Bradf. 281 (1853). 3 Borlase v. Borlase, Notes of ' Brookie v. Portwood, 84 Ky, Cases, 106, 139, cited in Brunt v. 259 (1886). Brunt, 3 P, & D. 87 (1873); S. C. 5 Moak, 580, 48 LOST WILLS. accident or design, being proven, it is the duty of the court to establish it as the will of this testator." ' If it is charged that the will was maliciously destroyed, the evidence must conform to the charge.^ In another New York case it was said that "the fraudulent destruction of a will, as the lan- guage is used in the statute, doubtless means a fraud against an imposition practiced upon the testator, defeating his in- tention and purposes in respect to the disposition of his property. If a testator is imposed upon, deceived and mis- led, and is thus induced to destroy his own will, I do not see why this is not as much of a fraud as if committed by some one else, and why it is not a fraudulent destruction of a will as much as the execution of a new will under the same influences would be regarded as ' the fraudulent exe- cution of a new will.' A fraud in both cases would be per- petuated through the agency and act of the testator him- self. The fraud in both cases would consist in inducing the testator to make such a disposition of his property as did not conform to his real wishes and purposes." ' Sec. 23. Statutes. — The rule is that if a statute per- mits the probate of a lost will the propounder of it must conform to its provisions; and if he does not show a case within its provisions, although the will may be lost, he will fail. Thus in New York it is said that a will can be estab- lished only in those cases prescribed by the code : (1) when in existence at his death; (2) when fraudulently destroyed in his life-time.'^ But these statutes " should have a liberal construction in furtherance of justice and for the preven- tion of fraud." ' The quotations made in the previous sec- tion are confirmatory of this statement. ' Schultz V. Schultz, 35 N. Y. 653 See the excellent case of Timon v. (1866). ClafiFy, 45 Barb. 446 (1865), on thia 2 Hatch V. Sigman, supra. The point, same is true in case of a fraudulent * Hatch v. Sigman, 1 Dem. 519 destruction. See § 34. (1883). aVoorhisv. Voorhis, 50 Barb. 119, ^Hook v, Pratt, 8 Hun, 108, 109 136 (1867) ; S. C. sub nom. Voorhees (1876). V. Voorhees, 39 N. Y. 463 (1868). WHEN WILL MAY BE PROVED. 49 Sec. 24r. Introduction as evidence of title before pro- batCi — In several jurisdictions the contents of an unpro- bated or established will can be read in evidence, especially where it is the source of title to the real estate in contro- versy. In most of them, however, this is not permitted ; and it is said that an unprobated will is not evidence of title,' even in case of a lost will.^ "Whether or not the con- tents of a lost or destroyed will can be given in evidence before its probate or establishment depends upon the ques- tion whether a will produced can be given in evidence before its probate; if the latter can, then the former may. There are a number of instances in vvhich this has been done,- in cases of ejectment or partition, and title estab- lished under it.' Thus, in an action of ejectment, proof" of possession in an ancestor of the plaintiff was shown. The defendant then introduced a probated will, containing a reci- tation that the ancestor had conveyed the land in contro- versy to him, and rested. The plaintiff then proved that the ancestor at the time he executed this probated will was insane, which proposition the defendant controverted by evidence; and the defendant also proved that' at the time of the execution of the probated will the testator tore up a will devising the land in controversy to the defendant. The latter was successful.* Sec. 25. Holding receiptor of property as a trustee. — There are a number of authorities which virtually hold that the contents of a lost and unprobated will can be given in evidence where the plaintiff claims title '133' the provisions of the will and charges the defendant with a receipt of the' devised property, thus seeking to hold him as a trustee. Elsewhere it has been shown that such an action is main- ' Rogers v. Stevens, 8 Ind. 464 reversing same case, but. on an- (1856). other point, 36 Barb. 88 (1863); 2Mauck V. Melton, 64 Ind. 414 Etheringham v. Etheringham, (1878). Aleyn, 3 (1647). 3 Dan v, Bowen, 4 Cow. 483 < Smith v. Wait, 4 Barb. 28 (1835); S. C, 15 Am. Dec. 804; Har- (1848). ris V. Harris, 26 N. Y. 433 (1863), 4 60 LOST WILLS. tainable in equit)', and the cases on that point are author- ities to support the conclusion that such evidence is admis- sible.' Sec. 26. Destruction by compulsion — Undue influence. If the destruction of a will is procured by undue influence or compulsion, it may be probated or established if the evi- dence does not showthat the testator afterwards acquiesced in its destruction or cancellation.^ The influence, to be an undue one, need not amount to force or coercion in order to make the destruction a fraudulent one.' Sec. 27. Res adjndicata. — Questions may have arisen whether or not an unsuccessful attempt to probate a lost will is sufficient to prevent a second attempt to probate it. In New York a question analogous to this arose. By stat- ute it was provided that a lost will could be established in the court of chancery, and a certified copy of this decree should be sufficient to authorize its probate in the probate court. The probate of any will in the state was conclusive in the case of personalty, but only i}rima facie as to realty. Another section of the statute giving the court of chancery jurisdiction provided that no will "shall be allowed to be proved as a lost or destro^'ed will unless the same be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed' in the life-time of the testator; nor unless its provisions shall be clearly and distinctly proved by at least two cred- ible witnesses; a correct copy or draft being deemed equiv- alent to one witness." Application was made in a court of chancery to establish a will, but the applicant failed,although he proved all the other necessary facts, except to prove " by two witnesses " the provisions of the will ; nor was any draft or copy produced. Upon a finding of these facts by the referee he drew his conclusions of law "that the will 1 Harris v. Tisereau, 53 Geo. 153 ^-wiuianjg y_ Baker, 5 Law Mag. (1874) ; S. C. 21 Am. Rep. 243 ; Clarke 135 (1838). V. Goodrun, 61 Miss. 731 (1884). 3 Voorhees v. Voorhees, 89 N. Y. 468(1868). WHEN WILL MAY BE PKOVED. 51 \ could not be allowed to be proved as a lost or destroyed will " under the statute quoted ; " and that the complaint of the plaintiff should be dismissed without costs to either party." This report became the Judgment of the court, and so remained at the time the second action was brought. The action to establish the will was brought by three of the heirs of the ancestor and alleged testator against the remaining two. The second action was brought by these last heirs against the other three for a partition of the an- cestor's land. In answer to this petition the three heirs set up the contents of the will, and that they were the sole devisees therein to the land in controversy. In reply these partition plaintiffs set up the attempt and failure to probate this will. This was held a good reply of res adjudioata; and it was further held that the statute requiring two witnesses to prove the contents of the will applied to a partition case as well as to an action to establish the will in chancery.^ On appeal this decision was reversed, and it was held that the statute did not apply to a case of partition. It was also further held, and this is the point sought to be brought out here, that there was no res adjudicata which prevented the proving of the will, the court saying: "The defendants as devisees of the real estate of John Harris, deceased, w^ere not concluded b}' the judgment in the propeedings instituted under the statute to prove and establish their father's will as one fraudulently destroyed; nor was such judgment effectual against them as such devisees in establishing their title to the real estate in the action of partition. It. cannot be pretended that the probate and record of a, will of real estate by the supreme court under the statute has any other or different effect than the probate before the surrogate of a will not lost; and in the latter case the probate is not con- clusive upon any party as to any interest in real egtate. Had the defendants, who were plaintiffs in the action or proceeding to prove and establish the will as one lost or destroyed by accident or design, been successful, the judg- ' Harris v. Harris, 36 Barb, 88 (1861). 52 LOST WILLS. meiit thereon would not be conclusiv^'e upon or estop the plaintiff in this action, the object of which is to divide the real estate of which John Harris died seized among those entitled thereto. And if Aaron Harris, the heir at law and plaintiff in this action, and who was the defendant in the former one, would not have been estopped by the judgment thereon had it been in favor of the defendants, the latter cannot be estopped, although they failed in that action, as estoppels when they exist at all must be mutual and bind both parties or neither. Besides, the objects sought to be attained in the two suits are entirely distinct and different. The single purpose of the former one was to make proof of a will alleged to have been lost or destroyed. And the judgment in legal effect was that there was not sufficient proof to establish the will as a record according to the pro- visions of the statute in relation to the probate of wills. To this extent it was conclusive. But the action did not directly involve the validity of the will as a will or devise of real estate, and no such judgment was authorized. No such judgment in terms reaching that question was given. On the contrary the record directly shows that the exclu- sive ground on which the judgment refusing probate pro- ceeded was that there was a failure of statute evidence as to the contents of the will, which the court found had been made and published in due form of law to pass real and personal estate, and was fraudulently destroyed by the plaintiff in this action. I am of the opinion that the de- fendants were not concluded by the judgment dismissing the complaint in the proceeding to prove and establish the vi^ill, and that the facts of the case justified the legal con- clusion at the special term that the plaintiff had no interest in the real estate of the testator that gave him the right to institute an action for the partition thereof." ^ Seo. SYa. Laches. — Where thirty years had elapsed be- 1 Harris v. Harris, 36 N. Y. 433 is conclusive until set aside, the (1863). In those jurisdictions where first proposition laid down in the the probate of a will of real estate above quotation does not apply. WJdiiJN wiiiij jviAi tm: rmj\Mu. tween the death of the testator and the filing of a petition for the probate of a lost will, and no reason was given for the delay, probate was denied.^ Yet where more than forty j'ears had intervened between the death and offer, sales under a former probated will having been made, it being shown that the petitioner, during many years of that time, was a minor, wholly ignorant of her rights under the lost will; that at her majority, and after she had ac- quired knowledge of her rights, she brought suit in the proper court for proving the lost will, but she was non- suited without her fault; that she instituted suit shortly after the nonsuit in the federal courts to set up the will and enforce her rights, and the case was ordered dismissed by the supreme court of the United States, as in case of nonsuit, without a decision on the merits of the cause, and without her fault, the explanation of the petitioner was deemed satisfactory, and the will was established, the court saying: "The staleness of petitioner's suit is best an- swered by reference to the litigation in which the petition- er's alleged rights have been prosecuted in other forms ; and we may suppose it did not become necessary to resort to the unusual proceeding of applying for the probate of a lost will until after those cases \xere decided. The plaint- iff presents to us a prima facie case which entitles her to relief."^ In this case the testator died in July, 1813; suit to establish the lost will was brought in the probate court June 18, 1834, and dismissed, as above stated, June 8, 1836. In 1836 she brought the action referred to above in the federal court, and in course of time it was dismissed, as pre- viously stated. The petition to probate it as a lost will, upon which the decision was made as above quoted from, was commenced January 18, 1855. Sec. 28. Statute of limitations. — It seems that a bill to be relieved against a fraud, perpetrated by the destruc- tion or suppression of a will, will not lie after twenty years, 1 Hunt V. Hamilton, 9 Dana, 90 2 Gaines' Appeal, 11 La. 124 (1839). See Holden v. Meadows, 31 (1855); S. 0. 4 Am. L, Reg. (O. S.) Wis, 384 (1872). 364. ,64 LOST WILLS. even though no notice of its having ever been in existence is averred.' Yet in another case it was said that in an ac- tion to establish a will a plea of the statute of limitations of thirty years is no bar. It is said not to be a " bill of re- lief; " that term not including bills asking " the aid of the court against possible future injury, or to support a, suit in another court of ordinary jurisdiction." ^ Such were said to be bills to perpetuate testimony, to examine witnesses de beve esse, bills of discovery of facts resting within the knowledge of the parties against whom they are exhibited, or the dis- covery of deeds, writings or other things in their custody or power. Therefore it was said that the statute requiring bills for relief to be filed within a certain time did not apply.' A statute providing that, where an original will is produced for probate, the time during which it has been lost, sup- pressed or concealed, or carried out of the state, shall not be taken as a part of the limitation provided within which wills must be probated, does not affect a pending case when the will has been fraudulently concealed by any person in- tevest3d in its non-production. In such a case the statute does not begin to run until the will is discovered, if reason- able diligence has been used to discover it.* Sec. 29. Statute of fi-auds. — If was once intimated that the wills act of 1837, of England, prevented the proof and probate of a lost will," but the intimation contains a wrong inference concerning the construction of that act. [Nor does the statute of frauds prohibit the introduction of parol evidence to prove the fact of a will having existed subsequent to the will found at the death of the alleged testator; nor does it prohibit proof of the contents any more than proof of the contents of any other lost instrument.® 1 Myers v. O'Hanlon, 13 Rich. 5 Wharram v. Wharram, 3 Swv (S. C.) 196 (1861). & Tr. 301 (1864); S. C. 33 L. J. (P. 2 Citing Story, Eq. PI. 17. & M.) 75 ; 10 Jur. (N. S.) 499. 3 Everitt v. Everitt, 41 Barb. 387 6 Helyar v. Helyar, 1 Lee, 472 (1864). (1754) ; Legare v. Ashe, 1 Bay (S. C), *Deake'8 Appeal, 80 Me. 51 464(1795). (1888); S. C. 13 Ail. Eep. 790. Seo. 30. Attempt to probate former, and proof of sub- sequent but lost will. — In discussing the question of juris- diction a quotation was made from a New Yorii case, showing the power of a probate court, on motion to probate a will produced, to receive evidence of a subsequent but lost ■will which revoked the one propounded. In that decision the conclusion was reached that such evidence was admis- sible, although the court had no power to probate the lost will. It was received to overthrow the proposition tliat the will propounded was the last will of the testator.' There are a number of decisions to the same effect, so far as the admission of such evidence is concerned; and the proposition that such evidence is admissible is well settled, for the purpose of showing that the will propounded is re- voked, expressly or impliedly, and hot entitled to probate.' In such an instance the revocation of the former will does not "depend upon the question whether its [the last will] loss or destruction was the result of fraud or of accident."' Where a will in writing of lands could be revoked by the parol republication of a former will in writing, it w-as held that, in order to ascertain whether or not the republished will operated as a revocation, its contents may be proved by parol if the will itself cannot be found, the proper ground for such secondary evidence being first laid.* iSec. 9. Wallis v. Wallia, 114 Mass. 510 2Helyar v. Helyar, 1 Lee, 473 (1874); Harwood v. Goodright, (1754); Legarev. Ashe, lBay(S. C), Cowp. 3, p. 87 (1774) ; Hope's Will, 464 (1795); Goods of Brown, 1 Sw. 48 Mich. 518 (1883). & Tr. 32(1858); S. C. 4 Jur. (N. S.) 3 Wallis v. Wallis, supra. 244; 37 L. J. (P. D.) 41 ; Havard v. ^Havard v. Davis, 8 Binney, 406 Davis, 3 Binney, 406 (1810); Jones (1810). V. Murphy, 8 W. & S. 375 (1844); CHAPTER III. PLEADING — POINTS OF PRACTICE. Sec. 31. Production — Petition.— The proper allega- tion of the loss, destruction or suppression of the will dis- penses with its production or an exact copy; for the law does not require something to be done which it is impos- sible to do.^ But the petition should set out the substance of the will, averring the facts to show a due execution, and showing the interest therein of the petitioner. Such is the universal practice, and yet few, if any, decisions are pub- lished which touch this point.^ In other instances a sup- posed cop3' is set out in extenso} In still other instances the alleged copy is made an exhibit.* In these latter cases the substance was also set out in the petition ; and in Con- necticut it was alleged that the copy attached was such as the witnesses who knew its. contents declared it to be.^ In an Alabama case there was set out in the pleading a pur- ported copy, and an affidavit of search for the original, and that the will was in substance as set out, was attached.^ Where the proceeding is in equity to set up or establish the 1 Matter of Delaplaine, 45 Hun, « Wyckoff v. WyckoflF, 1 C. E. • 335(1887). Gr. (N. J.) 401 (1863); Newell v. 2 Morris v. Swaney, 7 Heisk. 591 Homer, 130 Mass. 377 (1876). j;i872); Harris v. Tisereau, 53 Geo. 5 Johnson's Will, 40 Conn. 587 158 (1874); S. C. 31 Am. Rep. 342; (1874). Mercer v. Mackin, 14 Bush, 434 s^ppgi-gon v. Cottrell, 3 Port. (1879); S. C. 1 Am. Rep. 399; Davis (Ala.) 51 (1876); S. 0. 39 Am. Dec. V. Sigourney, 8 Met. 487 (1844); 339. This affidavit vs^as taken to Hall V-. Gilbert, 31 Wis. 691 (1873) ; be sufficient evidence of search Timon V. Claffy, 45 Barb. 438 (1865). having been made when the case sConoly v. Gayle, 01 Ala. 116 was called for trial, no objection (1878) ; Hildreth v. Schillinger, 3 being made to this kind of proof. Stock. Ch. 196 (1854); Dudley v. Warner, 41 Vt. 59 (1868). i-l/HADUNbr Jr-UIJNTS Oi<' JfltAUTlUii. 0( will, and it is sought to hold the defendant as trustee of the devised property he has received, the bill should praj' for an accounting as well as for the establishment of the will.i The petition may be amended to conform to the proof.^ Sec. 32. Allegation of loss or destruction — Pleading. The allegation of loss, destruction or suppression should be an unequivocal one and leave no room for doubt. Thus, it was alleged in an affidavit of loss " that no testamentary paper of the deceased had, at any time, come to his [the propounder's] hands or possession, or now is under his power or control." This was held insufficient, for the rea- son that it did not state that no such a paper had come " to his knowledge." ' This ruling is very well illustrated by what is said in the section next following this one; for it will be observed that the affidavit above referred to did not show, beyond a doubt, the actual loss, destruction or suppression of the will sought to be probated. It must also appear hj the allegations of the petition that the will was unrevoked and uncanceled at the testator's death.* Seo. 33. Will in existence. — From what has been said it will readily be seen that the petition must show either an actual loss, destruction or suppression of the will. The word " suppression," in this and the preceding section, is used in a limited sense, — nearly in the sense of destruc- tion, — in the sense that the will has been carried beyond the jurisdiction of the court and cannot be obtained by the propounder, or is known to be in existence but the place of concealment and the concealer is unknown, or the court cannot lay its hand upon him to compel its produc- tion; for if the will is in existence and the propounder of it as a lost will can produce it, or the court can, by its pro- iHall V. Gilbert, 31 Wis. 691 (N. S.) 373 ; 34 W. E. 479 ; 45 L. J. (1873); Harris v. Tisereau, 53 Geo. (P. & D.) 49; 17 Moak, 453. 153 (1874); S. C. 21 Am. Eep. 343. scolvin v. Frazer, 1 Hagg. 107 2 Bugden v. Lord St. Leonards, (1837). 1 P. D. 154 (1876); S. C. 34 L. J. < Newell v. Homer, 130 Mass. 377 (1876). 58 LOST WILLS. cess, reach the person who has possession of it, the will cannot be probated as a lost will. Statutes in nearly all states invest probate courts with plenary power to compel the production of a suppressed will; and until that power is exhausted it cannot be probated as a lost will." If it is developed in evidence on the trial that " the will is prob- ably in existence, and, for aught that appears, may be pro- cured and produced," the petitioner will fail.^ Yet if it is shown that the petitioner supposed it was lost when he brought the action, and it develops on the trial that the defendant has it in his possession, its production may be then enforced and it be then and tliere probated upon the application made.' In a complaint to establish and probate a lost will, after describing it particularly, its provisions, and that it was in existence at the testator's death, it was charged that the two defendants (heirs) " got access to the papers of the testator, and there found and discovered said will, and got the same into their possession, and concealed, and suppressed or destroj'ed the same." A statute of the state gave power to the probate court to bring before it an}^ person who concealed a will or had it in his custody, and allow its probate. The petition was held insufficient, the court saying: " It does not show that the alleged will, which it seeks to have established, was either lost or de- stroyed. It should allege one or the other, in order to be sufiBcient. . . . In a proceeding requiring so much cer- tainty of allegation and clearness of proof as is required in this proceeding, this allegation must be held insufficient. It is not certain, under the allegation, that the will is not in existence and cannot be got before the court and proved in the other mode of proceeding contemplated by the sj;at- ute [for the probate of wills in existence]." ' Even without a statute, it may well be doubted if a probate court has not iMcBeth V. McBeth, 11 Ala. 596 SMcBeth v. McBeth, supra. (1847). ^Kaster v. Kaster, 53 Ind. 531 2 Dudley v. Warner, 41 Vt. 59 (1876). (1868), L \JA.^^ xtj \j^ X ±\J::i.\j±i.Kjs:ja ample power to compel the production of a will in its juris- diction. Sec. 34. Proof must conform to petition — Fraudulent destruction. — .The proof must conform to the allegations of the petition. If it be alleged that the will was lost or destroyed after the death of the testator, it must be alleged and proved to have been in existence at his death ; if al- leged to have been lost or destroyed before his death, it must be alleged and proved to have been fraudulently de- stroyed (within the meaning previously given to the word fraudulent) during the life-time of the testator.^ A very instructive case upon this point, and what is a fraudulent de- struction, was recently decided in California. A statute of that state provided that " no will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the life-time of the testator." The petition charged that the will sought to be established " was fraudulently burned and destros'ed by and through the neglect and intention of one- Laura Stevens, who was then and there the nurse and sole attend- ant upon said decedent; and that said Mary Kidder (the de- cedent) died without &nv information or knowledge of the facts of said burning and destruction thereof." This was held to be an insufficient charge of a fraudulent destruction, because no fact and circumstance constituting the fraud was stated. The court found " that when said last will and testament was brought to her (the testatrix) she partially withdrew it from the envelope and then returned it there, and then allowed it to fall from her hand into the fire, when it was wholly consumed. That said destruction of said will was wholly unintentional on the part of said Mary Kidder ; . . . and that the wife of said Ira Stevens (the nurse) was present at the time said will was burned and saw it fall into the fire, but did not make any effort to preserve it, and did not inform said Mary Kidder that it had fallen into the fire 1 Kidder's Estate, 57 Cal. 283 (1881). 60 LOST WILLS. or was burned or destroyed." This finding, it was held, did not show any fraud on the part of the nurse nor a fraudu- lent destruction.' Sec. 35. Parties.— E"o one can insist on the probate of a will unless he is in some way interested in it. Usually that interest is that of a devisee or legatee. Perhaps a purchaser, from the devisee, of the land devised could in- sist upon its probate as a muniment of his title. In some states the probate of a lost will may be upon an ex parte application. Such was the fact in the celebrated Gaines case, already cited, the right to contest the validity of the will and its probate being left open. In an Irish case it was said: "As a general rule the court requires the draft or copy of a lost or destroyed will to be propounded before admitting it to probate; but where satisfactory evidence was given of the contents of a will, of the due execution, of its existence at the time of the testator's death, and of its subsequent destruction, the persons interested under it, and the persons in whose custody it was, not being in any way to blame for such destruction, the court, with the consent of the only persons interested in the event of an intestacy, granted probate of a draft on motion ; " and it was added, " but the court will not, on motion, grant probate of the contents of a lost or destroyed w^ill without either the con- sent of or notice to the next of kin." ^ And it is the general rule, except where probate is allowed on an ex parte appli- cation, that all of the next of kin of the testator, or all those, in other words, who would have inherited the prop- erty devised in case of his intestacy, must be made parties defendant in the application to probate the lost will.' No one should be made a plaintiff unless he is a devisee under the will, and if he will not join in the application, of course he may be made a defendant. If brought in on the wrong I Estate of Kidder, 67 Cal. 487 '(Joods of Denston, 3 Curteis (1885); S. C. 6Pac. Rep. 336. (Eng.), 741 (1843); Apperson v. s Goods of Callan, 9 Ir. Eq. 484 Cottrell, 3 Port. 51 (1836); S. C. 29 (1874). Am. Dec. 239. PLEADING POINTS OF PEACTICE. 61 side of the case no one but he can object, not even m the instance of an infant.^ If no objection is made at the non- joinder of proper parties, the error is waived, and cannot be, for the first time, raised in the appellate court.' If a will has already been probated, and the proposed will in any way affects such probated will and the interests of the dev- isees or legatees under it, such devisees and legatees should also be made parties to the application to probate,'. If the proceeding is to establish the will in a court of equity, and to hold the receiptor of the devised property or its proceeds a trustee for the devisee or legatee, then only the persons to be charged with a receipt of the property or its proceeds need be made parties, all the devisees or legatees joining in the action. While no authority can be cited for this state- ment, yet it is a reasonable and safe rule to so hold. Per- haps, however, there should be added as a party the exec- utor or administrator, either as plaintiff or defendant. In one case those who had purchased the devised real property of the heirs were made parties defendant, but nothing was said of this fact in the opinion;* and in still another case purchasers of the administrator with an early will annexed were held proper parties in a bill in equity to establish and compel an accounting.' If persons who have no interest in the estate or will are made parties, the case, as to them, will be dismissed.* Sec. 36. Temporary letters of admiriistratiou — Adver- tisement. — ^If the will cannot be found at the death of the testator, but it is known that one is in existence, a tempo- rary administration will be granted.'' The practice in the 1 Idley V. Bowen, 11 Wend.. 227 * Kaster v. Kaster, 52 Ind. 531 (1833). (1876). 2 Hall V. Gilbert, 31 Wis. 691 6 Gaines v. Chew, 3 How. 619 (J 873) ; Dower v. Church, 33 W. Va. (1845). 23 (1883). 8 Everitt v. Everitt, 41 Barb. 385, 3 Dower v. Church, 28 W. Va. 23 395 (1864). (1883);S. C. 57Am. Eep. 646. That 'Vallance v. Vallance, 1 Hagg. all heirs should be made parties, see 693(1838); Goods of Cousin, 1 N. Vallance v. Vallance, 1 Hagg. 603 of Cas. 396 (1841) ; Goods of Camp- (1828). ' bell, 2 Hagg. 555. 62 LOST -WILLS. Irish court of chancery, where a will is lost (not destroyed), has been outlined in the following quotation: "Before ap- plying for probate of a will which is stated to have been lost, an advertisement should be published offering a re- ward for the recovery of the will." Immediately following this statement is the following order: " Let this case stand over until an advertisement is published in the' Cork 'Con- stitution,' offering a reward of £10 for production of the will." 1 Where the codicil to the will was within itself complete after advertisement made, the court decreed a probate of the codicil.^ This advertisement should describe the will as accurately as possible, giving the substance of its contents and the names of the subscribing witnesses, and such other data as can be obtained.' This, however, is only one method of search for the lost instrument, of which more hereafter will be said. Sec. 37. Actual production of will in existence not nec- essary to probate. — It may be proper to here state that the production of the original will, even when it is in ex- istence, is not always necessary. Thus, a- draft which was the instrument drawn up by the solicitor for his guidance, and from which he drew the actual copy, was admitted to probate, the next of kin consenting.* And where the orig- inal was not produced, a good reason for its non-production being shown, a copy made subsequent to its execution was admitted over objections raised.^ So where a testator, not an inhabitant of the state, dies out of it leaving assets, the surrogate or probate court of the count}' where the assets are has jurisdiction to take proof of the will and may act although the original will is in the possession of a court or tribunal of another state or country and cannot be pro- duced.' In such a case proof of the substance is enough.'' 1 Goods of CaUaghan, 13 Ir. Ch. i Goods of Barber, L. R. 1 P. & 245 (1880). D. 267 (1866). 2 Goods of Halliwell, 4 N. of Gas. 5 Matter of Delaplaine, 45 Hun, 400 (1846); Medlycott v. Asheton, 2 225 (1887). Add. 239 (1834) ; Tagart v. Hooper, «Russell v. Hartt, 87N.Y. 19(1881). 1 Curt. 389 (1887). 'Younger v. Duffie, 94 N. Y. 'Coote'sProbateProceeding8,589. 535 (1884). PLEADING — POINTS OF PRACTICE. 63 Sec. 38. Joinder of actions. — If the suit is in equity to establish the will, an accounting may be called for and had in the same action.' In an action to set up a will, a prayer for the cancellation of a deed depending upon the non- testacy of the testator was prayed, and it was so decreed.''' Sec. 39. Enjoining a distribntion. — In Kentuck\% where it was held that a court of equity would not set up a lost will, yet an injunction against the distribution of the assets of the estate was granted until the alleged devisees had an opportunity of proving the will in a court of pro- bate.' But it was held in another case that a court of equity would not enjoin the administration of an estate in order to give the propounder of a will an opportunity to test the memory or the perjury of an attesting and neces- sary witness to the contents.* Sec 40. Plea — Answer. — An answer or plea of insan- ity or revocation is admissible.* A plea objecting to the probate of a lost will, for the reason that "the instrument sought to be established purports to be only a cop}^ of the will," is insufficient; so is one stating that "said instrument or writing ought not to be admitted to probate, because the same is not entitled to probate as the last will and tes- tament," being merely the statement of a conclusion, opin- ion or inference without the allegation of any fact on which it is based.* Sec 41. Interest vesting. — Immediately on the death of the testator the interest of the devisee or legatee at- taches, and it is not divested by the fact that the will is destro3'ed.' Nor does the will cease to be his will from the fact that it is lost or destroj^ed without his agency.^ 1 Gaines v. Eelf, 2 How. 619 ^Apperson v. Cottrell, 3 Port. (1845). (Ala.) 51 (1836); S. 0. 29 Am. Dec. 2 Voorhees v. Voorhees, 39 N. Y. S39. 463(1868). ' 6 Dudley v. Wardner, 41 Vt. 59 s Campbell v. West, 3 B. Mon. (1868). 242 (1842). f Payne's "Will, 4 T. B. Mon. 423 «Mosely v. Carr, 70 Geo. 333 (1837). (1883). 6 Foster's Will, 13 Phiia. 567 (1877); S. C. 34 Leg. Int. 322. CHAPTEE IV. PROOF OF EXECUTION AND FACTUM OP WILL. Sec. 42. Proof of execution of will necessary. — After the issues are formed proof of the execution of the alleged will is necessary, and the court may insist upon it as the first thing to be proved; and if there is a failure on this point — if the execution is not admitted — the court may non- suit the plaintiff or find against him in accordance with the general practice prevailing in the particular jurisdiction. This is, however, a matter of discretion with the court, being merely a rule as to the order in which the evidence at the trial shall be introduced. A number of authorities have laid dqwn the rule that the trial court has a right to insist that the factum of the alleged will shall be first proved before any other steps are taken.' The proof of execution must be established the same as if the will was produced in court.^ Sec. 43. Execution proved by subscribing witnesses. — The most natural resort to prove the execution of a lost or destroyed will is to the testimony of the subscribing or at- testing witnesses; in fact, one or both must be produced, or their non-production satisfactorily accounted for.' In some states the production of one attesting witness is sufficient to 'Conoly V. Gayle, 61 Ala. 116 scoUyer v. CoUyer, 4 Dem. 53 (1878); Mahood v. Mahood, 8 Ir. (1886); S. C. 17 Abb. N. Q. 328; Eq. 359 (.1874); Padmore v. What- Page v. Maxwell,, 118 III. 579(1886); ton, 3 Sw. & Tr. 449 (1864); S. C. 83 S. C. 8 N. E. Rep. 853; Butler v. L. J. (P. & M.) 143, 433; Voorhees Butler, 5 Harr. (Del.) 178 (1847); V. Voorhees, 39 N. Y. 463 (1868); Everitt v. Everitt, 41 Barb. 385 Morris v. Swaney, 7 Heisk. 591, 599 (1864). (1873) ; Dawson v. Smith, 3 Houst. ^ CoUyer v. CoUyer, svupea, (Del.) 335 (1866) ; Jaques v. Horton, 76 Ala. 338, 345 (1884). PROOF OF EXECUTION AND FACTUM OF WILL. 65 entitle the propounder to have the will probated; in others, two or all of them.^ In the case of a lost will, whether or not the propounder must call more than one of the attest- ing witnesses will depend upon the practice applicable to wills produced for probate — the rule in the one not being dissimilar from that in the other. A general statute desig- nating what is necessary to prove a will generally, applies to a lost will and the number of witnesses to be called.^ A. drew out for the deceased three wills, each of which con- tained a revocatory clause. A. got no benefit by the last will, but did by the other two. By A.'s evidence alone it a,ppeared that the testator took the three wills and selected the one earliest of date as the one he desired to operate, and then burned the other two. The will of latest date was not signed, so A. said, and was therefore not executed. It was held that he died intestate; that where a testament- ary paper is not in existence, and all the persons present ^.t an intended execution of it agree that it w^as not thereby executed, the court cannot, on a mere suspicion to the con- trary, say it was and decree its probate.' "In proceeding to consider and apply the evidence to the allegations of the complaint it is to be observed that the formalities or acts — several in number — which the law requires to constitute a valid will are to be proved .in the usual way, as other facts are required to be proved to make them evidence in a court of justice. While the stat- ute prescribes rules to be observed in the execution and publication of wills which it does not prescribe in regard to the execution and delivery of other written instruments, the proof of the several acts so prescribed is the same as the proof required to establish any other, fact. Thus, if the ' 1 Thornton v. Thornton, 39 Vt, held sufficient to prove the execu- 123 (1867) ; S. C. 6 Am. L. Reg. 341. tion ; and so in the next case cited., See Apperson v. Cottrell, 3 Port. Jackson v, Vickory, 1 Wend. 406 51 (1836) ; S. C. 39 Am. Dec. 339. (1828); S. C. 19 Am. Dec. 523. 2 Page V. Maxwell, 118 III. 579 'Bckersley v. Piatt, 86 L. J. (1886); S. C. 8 N. E. Rep. 852, In (P. D.) 7 (1867); S. C. 15 L, T. 827, this case one attesting witness was 5 6G LOST WILLS. instrument to be proved is in existence and within reach of the process of the court, it must be produced in court. If lost or destroyed, or its production from any cause becomes impossible, and that appears to the satisfaction of the court, secondary evidence may be resorted to. If there are wit- nesses to the execution of the instrument who have sub- scribed their names as such (and without subscribing wit- nesses selected by the testator himself a will has no force), they must also be produced and examined, if living and Avithin the power of the court. If they bo dead or beyond the jurisdiction of the court, secondary evidence may also be resorted to in this contingency and proof taken of their handwriting. Sq if the witnesses, when produced and ex- amined, have lost all recollection of the transaction, and especially of the extrinsic facts, other evidence may be again summoned to supply the imperfection of the wit- nesses' memory. For example, when the witnesses cannot recall to memory the circumstance that they subscribed at the request of the testator, that fact stated in the attesta- tion clause will be some evidence to show that such a re- quest was made. And if the witnesses are men of good character, and there is no doubt as to their signatures, or any other suspicious circumstances, the attestation clause would be deemed sufficient evidence of a request. In short, the law lays down no stubborn, inflexible rules in such cases, but accepts the best . evidence that can be procured adapted to the nature of human affairs, human infirmities and casualties, which "tends with reasonable certainty to establish the facts in controversy. The proof of a lost or destroyed will proceeds upon the theory that it is not in existence and cannot be produced before the surrogate, and therefore the case is one of secondary evidence exclu- sively."' - " It is undoubtedly material to show, in the proof of the regular execution of a will, that the testator signed the lEveritt v. Everitt, 41 Barb. 385 Barb. 448 (186ft); Rider v. Legg, 51 (1864); Lawrence v. Norton, 45 Barb. 360 (1868). PEOOF OF EXECUTION AND FACTUM OF WILL. t)T same in the presence of all the three subscribing witnesses; and this we are of opinion was in fact proved, if the jury believed the witness Alida Truax. She swore expressly that she saw the testator sign the will ; that the three wit- nesses were present, and that she and her husband wit- nessed it, — she being called in for that express purpose. It is true she stated that she did not then remember that Yan Yalkenburgh witnessed the will, and on her cross- examination said that she did not then recollect that any person was in tlie room when she witnessed the will besides the testator and his wife and herself and her husband. But it must be recollected that she was speaking of a transac- tion some thirty-six years old, and if she could not call to her remembrance all the facts minutely, so as to be able to state them distinctly aiid positively, her evidence is not therefore to be altogether disregarded. I understand from her testimony that she intended to swear to her belief that Yan Yalkenburgh signed the will, though she could not recollect the particular fact. Her evidence should have gone to the jury, and if she was an intelligent, respectable witness, they should have found in favor of the execution of the will. But independently of this testimony, I am of opinion the evidence offered and rejec1;ed was sufficient to have authorized the proof of the contents of the will. It was more than thirtj' years old, and it was offered to be shown the premises had been held under it from the death of the testator. Now, if the will had been produced, and the execution of it had appeared regtilar on its face, under the proof offered, it ought to have been received in evi- dence without requiring proof of its execution." " Upon the ground, then, that the secondary evidence of its contents was admissible, was the execution of it sufficientlj'' estab- lished? It was, as before said, some thirty-six years old, and would have proved itself if produced and the execu- tion of it appeared regular on its face. The best evidence of which the nature of the case admits is competent for this purpose. The only objection to the most strict proof 68 LOST WILLS. of the execution of the will that can be exacted under any circumstances is that it was attested by only two witnesses ; but making reasonable allowance for the great lapse of time and the difficulty of proof, the testimony of Mrs, Truax, together with that offered to be given by Piatt, a son-in-law of the testator, and that which was given by Crouns on his cross-examination, it seems to me there can- not be a doubt that it was duh'- attested by three witnesses. Whether it was or not must at this late day depend upon circumstances, and upon those the jury may find the fact of execution." ' The testimony of the son-in-law was that at the death of the testator there was a meeting of his heirs, at which the will was read as a valid will. The tes- timony of Crouns was that his father was executor under the will. Sec. 4i. Attesting witnesses dead or unknown. — It very often happens that the attesting witnesses are dead, but this will not prohibit the setting up of the will, "if clear proof be made that such a will did in fact exist." ^ In such an instance resort is had to secondary evidence, which, however, must be sufficient to establish with reasonable certainty all the facts which are necessary to concur in the execution of a valid will;' such as the signing.* Thus the handwriting of the witnesses may be proved by one who saw and recognized it.* Even though the names of the at- testing witnesses be unknown, if the fact that it was duly attested by the requisite number of persons can be proved, the will may be established lind probated.* iFetherly v.Waggoner, llWend. * Tynan v. Paschal, swpra; CoU- 599 (1834). yer v. Collyer, 4 Dem. 53 (1886); 2 Harris v. Tisereau, 53 Geo. 153 S. G. 17 Abb. N. C. 328. (1874); S. C. 21 Am. Rep. 242. In « Jackson v. Betts, 6 Cow. 377 this case this rule is said to be .in (1826), citing Dan v. Brown, 4 force in both England and this Cow. 483 (1835) ; S. C. 15 Am. Dec. country. 395. The same is true in case of 3 Tynan v. Paschal, 27 Tex. 286 a lost deed. Jackson v. Vail, 7 (1863); S. C. 84 Am. Dec. 619. Wend. 135 (1831). * Chisholm v. Ben, 7 B. Mon. 408 (1847), PEOOF OF EXECUTION AND FACTUM OF WILL. 69 Sec. 45. Presumptions as to execution — Attestation clause — Drawn by an attorney. — There are certain pre- sumptions indulged in with reference to the due execution of a will, chiefly arising from the recitals in the attestation clause, or its being in regular form, or from the fact that one skilled in the law either wrote the will or superin- tended its execution. If one skilled in the law, as an at- torneyor solicitor, superintended the execution of the will, there is a stronger presumption raised that the will was properly executed than if its execution was superintended by one not so skilled. This is a mere presumption of fact and not of law.* In this last case it was said : " Where the witnesses are dead, or from lapse of time do not remem- ber the ciroumstancefs atten4ing the attestation, the law, after the diligent production of all the evidence then exist- ing, if there are no circumstances of suspicion, presumes "the instrument properly executed; particularly where the attestation clause is full." In another case it was said: "Here the attorney drew the will, subscribed it as a wit- ness, and testifies to everything but the name of the third witness. It seems to me that, from this, the presumption of due execution is inevitable." ^ In 1835, in England, a will was executed and left with the solicitor, who drew it, for safe keeping. In 1871 it was sought in the depositories of the solicitor, but not found. He was then dead. But a cop}' was found in such place of deposit, and an entry in his day-book, in his handwriting, to the effect that he had prepared a will for the alleged testator, attested its execution, and been paid for his serv- icfes in drawing it. This memorandum and the copy were put in evidence, and the will admitted to probate.' In speaking of a full attestation clause and its effect, the court 1 Butler V. Benson, 1 Barb. 526, iam L. Marcy, of New York. Cit- 536 (1847). ing Hands v. James, Com. Rep. 2 Dan V. Brown, 4 Cow. 483, 490 531. (1835); 15 Am. Dec. 395. The at- 3 Goods of Thomas, 30 W. R. 149- torney in this case was Hon. Will- (1871). 70 LOST WILLS. remarked in a New York case that "if the witness had been able to state that the two or three names which he noted at the foot of the paper were subscribed to a full attestation clause, showing that the paper had been exe- cuted with the formalities required by the statute of wills, that testimony, in connection with the other testimony ad- duced by the proponent, might have made out a privia facie case. But the record as it stands contains no evi- dence whatever that the paper which Kabb testifies he saw was duly executed as a will. This we regard as a fatal de- fect in the proponent's case. In all the cases cited by the appellant's counsel upon this branch of the case, there was a full attestation clause. They authorize the proposition that ' if the attestation clause is full and the signatures gen- uine, and the circumstances corroborative of due execution, and there is evidence disproving a compliance in any par- ticular, the presumption may be lawfully indulged that all the provisions of the statute, were complied with, although the witnesses are unable to recollect the execution or what took place at the time.' That proposition is not questioned. The foundation upop which the proposition rests is the at- testation clause, and that is lacking in this case." ^ But the mere fact that one skilled in the law drew the will, and that there was a full attestation clause, are not of themselves (both taken together) sufficient to prove its execution.^ Its execution cannot be inferred from, proof of facts which, if the will was before the court, would in no way tend to es- tablish it, and wHch are usually reasonably consistent with the contrary conclusion.'. Sec. 46. Declarations of testator. — Whether or not the declarations of the testator are admissible to prove the fac- tum or execution of a will, the authorities are not agreed. In New York it was said: "While there is considerable iKussell's Will, 33 Hun, 271 'Tynan v. Paschal, 37 Tex. 286 (1884). (1863); S. C. 84 Am. Dec. 619. 2 Hatch V. Sigman, 1 Dem. 51« (1883). PKOOF OF EXECUTION AND FACTUM OF WILL. 71 conflict in the few cases involving declarations of deceased persons in proceedings of this character, yet I regard that as the better rule — the more consistent and reasonable — which favors their admission; but while these declarations are admissible, it is only as a circumstance to be taken in connection with other proof tending to establish a certain fact. It would be rendering the strict language of the statute nugatory to say that declarations of decedent, how- ever lucid and precise they may be, however minutely they may detail the facts occurring at the execution of the will, and however numerous they, may be, will establish the exe- cution of the will, and also be tantamount to the two cred- ible persons made an indispensable necessity b}' the statute." In Kentucky it was said: "The right to make a will, whether conferred by statute or existing by common law, iS' regulated by statute as to the mode of its exercise, and, unless exercised according to the mode prescribed, cannot be exercised at all; and to allow the mere declarations of the testator, to prove compliance with the statutory con- , ditions, would be to substitute such declarations for that which the statute requires shall be in writing." ^ But the court was careful to say that such declarations with other evidence is admissible. Such "other evidence" is neces- sarily evidence of the execution and factum, of the will. But the mere declaration that there was a will which was duly executed cannot be established alone by the testator's declaration. Other evidence of its execution is necessary,^ even where a copy is produced.' Standing alone such dec- larations are insufficient; yet they are always admissible if to be followed by other evidence, whether direct or cir- cumstantial.* In another New York case it was recently 1 Mereer v. Mackin, 14 Bush, 434 * Colvin v. Fraser, 3 Hagg. 366 (1879) ; S. C. 1 Amer. Prob. Cas. 399. (1829). "To hold otherwise would s^Clark v. Morton, 5 Rawle, 234 be to dispense with all the safe- (1835); Tynan v. Paschal, 37 Tex. guards required by the statute." 386 (1863); S: C. 84 Am. Dec. 619. Eussell's Will, 33 Hun, 371. (1884). 3 Goods of Ripley, 1 Sw. & Tr. 68 See Page v. Maxwell, mpra. (1858); S. C, 4Jur. (N, S.)343. rJ LOST WILLS. said : " The proof of lost wills rests in secondary evidence ; and we are inclined to tjiink that so far as the existence of a will shown to have been duly executed may depend upon that intent of the testator without the aid of any act, his declarations may be competent as some evidence of his in- tent as of the time they are made, but that such evidence should be carefully scrutinized and cautiously weighed." ' Sec. 47. Admissions. — The admissions of one claiming under a will may be used as proof of its execution. Where a grandson brought an action of ejectment after the death of his father and mother, deriving title from his grandfather, the admissions of the father and mother that the grand- father executed a will, which was lost, by which they claimed title, were held admissible.^ Perhaps such admis- sions would be sufficient to prove its execution. So in an- other case the declarations of a deceased person, who had been in the possession of property, claiming a limited in- terest therein under a particular will, were held admissible to prove the fact that such will had a legal existence, and also that certain persons were named executors therein. And where a copy of such will, the original not being forth- coming,, was found in the possession or amongst the papers of the legal adviser of one of such executors, it was held evidence of such will, and was admitted as suxjh.' Sec 48. Burden — Suflficiency of proof. — The burden of proving the execution and existence of the will is upon the propounder to prove " by strong, positive and convincing evidence," it is said.'' But the same latitude is allowed as if the will was produced in court.^ The facts tending to establish the fact of publication may be shown, such as the 1 Matter of Marsh, 45 Hun, 107 ^giy y. Sly, L. R. 3P. D. 91(1877); (1887); Sugden v. Lord St. Leon- S. C. 46 L. J. P. D. 63; 25 W. R. ards, L. R 1 P. D. 154 (1876) ; S. C. 463." 45 L. J. (P. & M.) 1 ; 34 L. T. (N. S.) * Southworth v. Adams, 11 Biss. 372; 34 W. R. 479; 17 Moak's Rep. 256 (1883). 453. 5 Everitt v. Everitt, '41 Barb. 385 2 Fetherly v. Waggoner, 1 1 "Wend. (1864). 599 (1834). PEOpF OF EXECUTION AND FACTUM OF WILL. 73 draftsmaa's direction and instructions to tlie testator, ac- quiesced in by him.^ A. and B. testified that the alleged will had been in existence; C. and D., the alleged attesting wit- nesses, said they had signed some paper, but did not know what it was. This was held insuflBcient to prove the execu- tion of the will; because no evidence identified the paper re- ferred to by A. and B. with the one referred to by 0. and D.^ The attorney who drew arid who produced the draft, con- taining neither the decedent's name nor that of the wit- nesses, was unable to say positively that he was one of the attesting witnesses, and knew not the name of the other. It was held that the execution of the will was not proved.* The testator's declaration that he had " made a will " is not proof of its execution, it was said, " but an expression of his opinion as to what was necessary to constitute a valid will, in which he may have been wholly mistaken. But had he declared that he wrote and signed it with his own hand, evidence of such declarations would not be sufficient to authorize the probating of the will." * Proof of the sanity of the testator is not indispensable in the absence of proof that he was not of sound mind. The disposition made by him of his property may of itself afiford sufficient evidence of his sanity." Sec. 49. Spoliated. — If the will is shown to have been intentionally destroyed by one interested in its destruction, especially if he is a party to the proceedings, or has an op- portunit3^ to defend, its proper execution may be inferred, or at least many things will be presumed to have been done of which there is little or no evidence." 1 Voorhees v. Voorhees, 39 N. Y. ''Mercer v. Mackin, 14 Busb, 434 463 (1868). (1879); S. C. 1 Amer. Prob. Cas. 399. 2Crickett v. Field, 19 W. E. 233 5 Anderson v. Irwin, 101 111. 411 (1871). (1883). 3 Collyer v. Collyer, 4 Dem. 53 * Tynan v. Paschal, 37 Tex. 286 (1886); S. C. 17 Abb. N. C. 338. (1863); S. C. 84 Am. Dec. 619. CHAPTER V. PROOF OF LOSS, DESTRUCTION OR SEARCH. Sec. 50. Proof of loss or destruction essential. — Since the will itself is the best evidence of its contents, it must be produced, or evidence given showing an excuse for its non-production. It can scarcely be said that this evidence should be produced before evidence of the execution of the will is given ; for, until a valid will is shown to have been once in existence, it cannot logically be said that search for it must first be made and proved before proof of its existence is given. This is somewhat technical and an im- material point of practice ; for the court, for the time being, may assume that there was a will, as alleged, and allow evi- dence of a proper search to be given. The matter is dis- cretionary with the court; and, whichever way it is taken, proof of loss or destruction of the will must be given before evidence of its contents is admissible.' Proof of loss or de- struction, when shown to have been in existence at the death of the testator, " is a material fact to be proved, par- ticularly when it vras last seen in the possession of the person in whose favor it is claimed to have been made." ^ If it is charged that a defendant, who is resisting the pro- bate, destroyed the will, his declarations are admissible to show its destruction.' Such a person's threats, or the threats of a person interested, are admissible to show a destruction, and it is said without a charge that he destroyed it, on the ground that it was lost or destroyed, and not revoked.* It 1 Morris v. Swaney, 1 Heisk. 591 2 McNally v. Brown, 5 Redf. 373 (1872); Mahood v. Mahood, 8 Ir. (1882). Eq. 359 (1874) ; Dawson v. Smith, 3 Youndt v. Youndt, 3 Grant, 140 3 Houst. (Del.) 335 (1866); Vining (1861). V. Hall, 40 Miss. 83 (1866); Minor ^Scoggins v. Turner, 98 N. C. 135 V. Guthrie, 9 Ky. L. Rep. 113. (1887); S. C. 3 S. E. Rep. 719. PROOF OF LOSS, DESTKUOTION OR SEARCH. Y5 will not be presumed, however, that any one destroyed it from the bare fact of possession in him being shown. If it is to his interest to destroy it, that fact must be shown.' Where a will was destroyed after probate, it was said : " The fact that the will of Benjamin Whitfield was found in a book kept by the clerk of the court of pleas and quarter sessions, in accordance with the requirements of law, is prima facie evidence of the probate of the will. Omnia proBsumuntur rite acta esse." ^ What became of the will is immaterial, so that it was not destroyed or canceled by the testator, or in his presence and by his consent and direction, from whicia the animo revooandi is conclusively presumed.^ It is not necessary for the party propounding the will to show how it was destroyed.* Sec. 61. Proof of loss, to whom directed. — It is said that the proof of loss or destruction is directed to the court, and need not be as strict and technical' as when submitted to a jury.^ If the evidence does not show its loss or fraud- ulent destruction, the court may arrest the case and direct the verdict. "It is true, as was contended by counsel for the defendant, that it is a fact for the jury ultimatel3' to pass upon, and find whether the will is, or is not, shown to have been fra,udulently destroyed; or rather this becomes ultimately a question for the jury in all cases where the party adduces sufficient evidence in the case to entitle him to go to the jury upon the question. If, on the contrary, the evidence so far fails to make out this fact thut the court would feel itself constrained to set aside the verdict of the jury, if they were to find the fact in favor of the party seek- ing to show the will fraudulently lost or destroyed, then the court, upon the trial, may properly refuse to leave this question to the jury ; and even do what was done upon the 1 Jones V. Murphy, 8 W. & S. 375 * Patten v. Poulton, 1 Sw. & Tr. (1844). - 55 (1858); S. G. 4 Jur. (N. S.) 341; 2 Nelson v. Whitfield, 83 N. C. 46 37 L. J. (P. & M.) 41. (1880). ^ 5 petherly.v. Waggoner, 11 Wend. sScoggins V. Turner, 98 N. C. 599 (1834); Eure v. Pitman, 3 135 (1887) ; S. C. 3 S. E. Rep. 719. Hawks, 364 (1834). 76 LOST WILLS. trial of this cause — arrest the trial at this point, by refusing to permit the party to go into evidence to prove the will." ' Sec. 62. Proof of search.^ The bufden lies upon the propounder to show that the will cannot be found and that he has made diligent but unsuccessful search for it, in the case of a loss.- This must be done before parol or other evidence is admissible to prove Its contents.' " The general rule is that, to entitle a party to give parol evidence of the contents of a will when there is not conclusive evidence of its destruction, it must be shown that diligent search has been made in those places where it would most probably be found." " I think the defendants [who had the burden of proving the will in the case] are bound to show due search among the papers of the deceased at his usual place of resi- dence ; and if, -on such search, the will cannot be found, parol evidence is admissible." * The places to search are those places where it would most probably be found, if in existence, of which an example was given above in the quo- tation.' Proof of such search is "pt^ima facie sufficient."* If it is shown that the testator had more than one place of keeping his papers, both places must be searched. "All the party should have been permitted to say on this subject was that he knew not what had become of the will; that the trunk was in his possession at the death of his father, and that the will was not in it at that time. This was all that was necessary or proper, unless the adverse party chose to examine him more particularly as to the fact of the ex- istence of the paper after that time." ' Sec. 53. Examples of search. — In one case where it was sought to prove the contents of a lost will years after 1 Knapp V. Knapp, 10 N. Y. 276 5 Gaines v. Hennen, 34 How. 533 (1851). (1860); Regina v. Johnson, Deai-s. ••! Morris v. Swaney, 7 Heisk. 591 & B. 340 (1857). (1873). 6 Jackson v. Betts, 6 Cow. 877 3 Dawson v. Smith, 3 Houst. (1836). (Del.) 385 (1866). 'Betts v. Jackson, 6 Wend. 173 < Dan V. Brown, 4 Cow. 483 (1835) ; (1880). Jackson v. Betts, 9 Cow. 208 (1828). PEOOF OF LOSS, DESTEUCTION OF SEAEOH. 77 the testator's death, and there was no evidence to show whether it had been probated or not, it was said : " It was incumbent on the party to have made examination in the oflBce of the surrogate of the county where the testator died, or in the office of the judge of probate, or to have made inquiry of the executors, if known." ' Where search was made in the probate office, in different registers' offices in the counties where the lands, of which it was claimed the will contained a devise, lay, among the papers of the owners of the several parcels of land, among the papers of the draftsman, and inquiry was made of the only executor of theithree that could be found, and of the several devisees, it was held that sufficient search had been made to let in parol evidence of the will's contents.^ Where it was sought in a criminal case to prove that the defendant had destroyed the will, proof of search in such places as the testator kept his papers was held not sufficient, but to it, must be added proof of search in the proper local probate court.' A plaintiff in ejectment claimed under a lost will. He proved that the testator made a will several years 'before his death, and dep'osited it with one Mallory for safe keep- ing. Afterwards he took it back for the avowed purpose of adding a codicil, which he did about July 7, 1821. On the 1st day of March, 1822, his daughter saw a paper in the drawer of his writing-desk which she had no doubt was his will. Between that day and his going on a journey to visit his son in the following' April, she saw him take some papers from the drawer and burn them, but did not know and could not say they resembled the will. She saw him also several times engaged at the desk in arranging his papers, a bundle of which he placed in his trunk. She read the paper hastily and only in part, but was satisfied it was her father's will, and stated several circumstances calcu- lated to identify it with the will and codicil proved to have 1 Jackson v. Hosbrouck, 13 ^ Regina v. Johnson, Dears, & Johns. 193 (1815). B, 340 (1857), 2 Brown v. Morrow, 43 Q. B, (Canada) 4)6 (1878). T8 LOST WILLS. been executed; and she also stated circumstances which had a contradictorj'^ tendency. The testator died in May, 1822. The trial judge thought it necessary to show the ex- istence of the will subsequent to the execution of the codicil, and that this was not satisfactorily done by the daughter's testimony. On appeal the appellate court re- fused to decide whether it was necessary to show the exist- ence of the will at a time after adding the codicil, but held that there was sufficient evidence upon the point to go to the jury, and that it should have been submitted to them as well'as that of the revocation. The nonsuit was held error.' " James Mallory testified that Jared Betts, one of the plaintiffs, informed him that the will could not be found ; that James Brown had been up to Brunswick and loolied for the will in the desk where he supposed it was left, and it could not be found. This is certainly a very ex- plicit admission by one of the plaintiffs. Harvey Betts and Thaddeus Dan stated to the surrogate that they pre- sumed there had been a will, but it could not be found; and that search had been made. The plaintiffs' counsel introduced the petition and affidavit of Brown, Betts and Dan to obtain administration. These, however, are silent as to the question whether due search had been made. The defendantSj who claim under the will, were called on to prove that the}' had made diligent search. Search by other persons, and not at their request, will not suffice. The admission by Jared Betts and Thaddeus Dan to the surrogate was, not that Brown or either of the defendants had made search, but generally that the will could not be found. In what manner and by whom search was made they do not state. It was an admission that did not exon- erate the defendants from giving affirmative proof of search made by them or some of them." ^ Sec. 54. How proof of search is made — Admissions. — The usual way of making proof is by the oral testimony of witnesses who have made the S3arch, or by those who were 1 Betts V. Jackson, 6 Wend. 173 2 Dan v. Brown, 4 Cow. 483, 491, (1836). 492 (1825) ; S. 0. 15 Am. Dec. 895. PEOOF OF LOSS, DESTEUCTION OF SEAECH. iV present when it was made. Such was done in those cases already cited. Where an affidavit of search was filed with' the petition, and was read, without objection, to prove loss and search, this was alone held sufficient, and with other evidence was held ample.' Admission of one of the ad- verse parties that the will could not be found was held evi- dence against him only, and not against the others, where the action was to recover possession of land held by them in common.^ Sec. 55. Declarations of testator to prove destruction. Those declarations of a testator relating to the destruction b}'^ him are not admissible as evidence to show a destruc- tion, but are to show the intention with which the act was done, if there is no other evidence of a destruction ; for evidence of an intention not to adhere to the will produced is admissible to contradict the evidence of adherence, what- ever be the form of words in which the intention was ex- pressed.' 1 Apperson v. Cottrell, 3 Port. 51 Dem. 53 (1886); S. C. 17 Abb. N. C. (1836); S. C. 29 Am. Dec. 239. 328. Evidence of his declarations 2 Dan V. Brown, 4 Cow. 483 in regard to the destruction of his (1825); S. C. 15 Am. Deo. 395. will was admitted without objec- 3 Keen v. Keen, L. E. 3 P. & D. tion ; but it was thought not to be 105 (1873) ; S. C. 43 L. J. (P. & M.) admissible. Voorhis v. Voorhis, 50 61 ; Staines v. Stewart, 3 Sw. & Tr. Barb. 119, 125 (1867). 320 (1861); CoUyer v. Collyer, 4 CHAPTER VI. PRESUMPTION OF EEVOCATION. Sec. 56. Presumed to Ibe revoked.— A will that cannot be found at the death of the testator upon proper search made is presumed to have been destroyed by him animo revooandi. This is particularly true where it is traced to the testator's possession and never traced out of it.^ The law presumes that the will was in his possession and so continued until he destroyed it.^ But whether or not the will is in his possession, the presumption of revocation prevails, with the distinction that stronger evidence to over, throw or rebut it is required in the case of possession than in a case where it is traced out of his possession.' This rule prevailed where the testator, being sick, made bis will only five days before his death.* So this presumption prevails if it cannot be found at the place he left it.^ The rea- iHelyar v. Helyar, 1 Lee, 473 Y. 376 (1851); Eckersley v. Piatt, (1754); Welch v. Phillips, 1 Moo. L. R. 1 P. & D. 38 (1866); S. C. 36 P. C. 399 (1836); Cutto v. Gilbert, L. J. P. D. 7; 15 W. R. 233; 15 L. 9 Moo. P. C. 131; Lillie v. Lillie, T. 337; Brown v. Brown, 10 Yerg. 3 Hagg. 185 (1839); Scoggins v. 84(1836); Idley v. Bo wen, 11 Wend. Turner, 98 N. 0. 135 (1887): S. C. 8 237, 336 (1833); HoUand v. Ferris, S. E. Rep. 719; Hatch v. Sigman, 2 Bradf. 334 (1853); Legare v. Ashe, 1 Dem. 519, 530 (1883); McBeth v. 1 Bay (S. C), 464 (1795); Minkler McBeth, 11 Ala. 596 (1847); Jones v. Minkler, 14 Vt. 135 (1842); Dh- V. Murphy, 8 W. & S. 375 (1844); rant v. Ashmore, 2 Rich. (S. C.) 184 Schultz V. Schultz, 35 N. Y. 653 (1845); Southworth v. Adams, 11 (1866); Wargent v. HoUings, 4 Biss. 356 (1883) ; Appling v. Eades, Hagg. 345 (1832); Loxley v. Jack- IGratt. 386(1844); Matter of Marsh, son, 3 Phil. 136 (1819); Mercer v. 45 Hun, 107 (1887); Scoggins v. Mercer, 84 Ky. 31; Minor v. Guth- Turner, 98 N. C. 135 (1887); S. C. 3 rie, 9 Ky. L. Rep. 113. S. E. Rep. 719 ; Fuentes v. Gaines, 2 Lillie V. Lillie, 3 Hagg. 185(1839). 34 La. Ann. 85 (1873). 8 Davis V. Sigourney, 8 Met. 487 ^ Brown v. Brow^n, 10 Yerg. 84 (1844); Mercer V. Mackin, 14 Bush, (1836). 434 (1879); S. C. 1 Amer. Prob. ^Bulkey v. Redmond, 3 Bradf. Gas. 399; Knapp v. Knapp, 10 N. 281 (1853). PRESUMPTION OF EEVOOATION. 81 sons for the revocation are immaterial in the face of the undisputed fact that a revocation was made.' Sec. 57. Reasons for presumption. — In spealiing of the reasons for this presumption, and of the presumption itself, Chancellor Walworth said : "Is then the presumption a reasonable one that the testator, who had a perfect right to destroy the will, and who had no interest to keep it if he changed his mind as to the disposition of his property, has done the act? or is it more reasonable to suppose it has been done by some other person in fraud of tbe right of the devisees, and by perpetrating a crime which the law ab- hors? I confess I cannot perceive the analogy between this case and that of a lost deed or other paper in which the depositary has an interest in its preservation. After the will had been consummated hy the death of the testator, if it was subsequently lost by a party who had an interest in preserving it, the analogy would hold. The law will not presume that a man has acted directly in opposition to his interest; and therefore where he has in his possession a paper which is evidence of his right, and it cannot be found after his death, the law presumes it was lost by accident or spoliated by some one who had an interest to destroy it. 1 Scoggins V. Turner, 98 N. C. The whole of the evidence must be 135 (18S7) ; S. C. 3 S. E. Eep. 719 ; taken together to see whether it Holland v. Ferris, 3 Bradf. 334 raises'a presumption that the will (1853). In Sugden's Case, quoted was destroyed by the testator with at length in section 60, the views the intention of revoking it." expressed in the above section The interpretation to be put upon were adopted ; but from a remark this remark is that the plaintiff, by of the master of the rolls, a statute her petition, having admitted the changed the rule as to the burden destruction of the will, thereby re- of proof, although no reference in lieved the defendants from show- the opinions is made to it, nor ing its revocation ; but after having does it appear te have had any ef- shown evidence sufficient to prima feet in deciding the cases. He facie rebut the presumption she said: " By the twentieth section of had raised, the burden still rested tlie Wills Act the onus is thrown on the defendants to show a rev- on those who seek to show that ocation. This is the interpretation the testator has destroyed his will the writer puts upon the whole with the intention of revoking it. case. 82 LOST WILLS. Eut it is every day's practice to presume the destruction of notes and bonds whicii have been paid and taken up, and which the obligor, in whose possession they last were seen, had no longer any interest in preserving. A will is of no effect until the death of the testator; until then it is said to be ambulator^', depending on his mere volition, whether it shall remain in existence for a single hour. 'No person has any rights under it; and the moment the testator wills its destruction he immediat&ly has an interest that it should be destroyed. It not only becomes useless to him, but actu- ally injurious, because, in case of sudden death, it would thwart his then wishes as to the disposition of his property. Very slight circumstances may and frequently do produce material changes in testamentary dispositions ; and although I should place very little reliance upon it as evidence to rebut a legal presumption once established, yet the simple fact stated in the preliminary testimony of James Brown, that Mrs. Ayres went from Brunswick to Poundridge to watch by the pillow of her aged dying parent, may have been sufficient to change the whole current of his affec- tions, and had induced him to destrojj^ the will so that she might receive a child's portion of his property. Legal pre- sumptions are founded upon the experience and observa- tion of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances, and the result being thus ascertained, whenever such circumstances occur, they are frima facie evidence of the fact presumed; and I have no doubt that five wills, made with all due for- mality, have been destroyed by the testator, either in secret or when no one was present to be a witness to prove the fact, to where there has been one destroyed or suppressed by fraud, or lost by time or accident, before the death of the testator. If this be so, the legal presumption must be directly the reverse of that which was given to the jury as the law of this case; and if we sanction the decision of the judge at the circuit, we may have the devisees under many wills which have been' thus rightfully destroyed PEESUMPXION OF EEVOCATION. 83 calling upon the heirs at law, through the medium of our courts of justice, to prove that such wills are not in exist- ence; or at least to prove the fact that they were actually destroyed by their ancestors, and have not been fraudu- lently destro3'ed or suppressed by themselves."^ Sec. 58. Presumption may be rebutted. — All the cases, however, hold that the presumption of revocation may be rebutted.^ It will thus be seen that this presumption is only a prima facie one. It may be rebutted, aside from declarations of the testator, by circumstances showing an intention not to revoke the will.' Speaking upon this sub- ject, it was said in an English case that " this presumption of fact and this legal consequence may be rebutted by sat- isfactory evidence ; but the burden of proof lies upon the party setting up the will, whether he sets it up by pro- pounding a draft, a duplicate or a canceled will ; for whether the paper be found canceled, or whether it be wholly re- moved and not found at all, still the first presumption as to the person who did the act is the same. The force of the presumption and tlie weight of the onus may be different according to circumstances; but the court, in order to pro- nounce for a draft, or a duplicate, or a canceled will, must be judicially convinced that the absence or cancellation of the paper once in and not traced out of the deceased's own possession was not attributable to the deceased. This nega- tion may be established by a strong combination of circum- stances leading to a moral conviction that the deceased did not do the act; or it may be established by direct positive iBetts V. Jackson, 6 Wend. 173, (P. D.) 7; 15 W. R. 333; 15 L. T. 180, 181, 183 (18;^0). 337; Knapp v. Knapp, 10 N. Y. 376 2 South worth V. Adams, 11 Biss. (1851): Foster's Appeal, 87 Pa. St. 356 (1883); Minkler v. Minkler, 14 67 (1878); S. C. 1 Amer. Prob. Cas. Vt. 135(1842); Durant v. Ashmore, 435; 30 Am. Eep. 340; Patten v. 3 Eich. (S. C.) 184 (1845); Legare v. Poulton, 1 Sw. & Tr. 55 (1858); S. Ashe, 1 Bay (S. C), 464 (1795); C. 4 Jur. (N. S.) 341; .37 L. J. (P. & Jaques v. Horton, 76 Ala. 338 M.) 41. (1884) ; Davis v. Davis, 3 Addams, = Patten v. Poulton, 1 Sw. & Tr. 323(1834); Eckersley v. Piatt, L. R. 55 (1858); S. C. 4 Jur. (N. S.) 341; 1 P. & D. 381 (1866) ; 8. C. 36 L, J. 37 L. J. (P. & M.) 41. Si LOST WILLS. evidence in different ways, such as proving the existence of the instrument after the testator's death ; by proving that he himself destroyed it when of unsound mind, or by error, . or under force sine animo revocandi, or by proving that it was fraudulently destroyed by some other person; but under this last supposition the proof must be clear, because a fresh presumption arises — the presumption in favor of innocence; for if a fraud is charged, it must be clearly proved by facts and circumstances leading to a conclusion of guilt. "All these presumptions, if they come to be analyzed, may be resolved into the reasonable .probability of fact, deduced from the ordinary practice of mankind and from sound reason. Persons in general keep their wills in places of safety, or, as we here technically express it, 'among their papers of moment and concern.' The}' are instru- ments in their nature revocable; and if the instrument be not found in the repositories of the testator, where he had placed it, the common sense of the matter p7'ima facie is that he himself destroyed it, meaning to revoke it; and if he destroyed the part in his own possession, the common sense of the matter again is that he also intended to de- stroy the duplicate not in his own possession. "It was argued, on behalf of the executor, that the bur- then of proof lay on the next of kin ; that they must show affirmatively by evidence that the deceased himself de- stroyed the instrument. The doctrine is new, and no author- ity was given to support it; and the court cannot venture to adopt it without authority, and against authority. The passage quoted from Swinburn seems to' be quite in the op- posite direction." ' Sec. 59. Declarations of testator. — From the quotation just made it will be observed that declarations of the tes- 1 Colvin V. Fraser, 3 Hagg. 366, Also Limbrey v. Mason, 2 Comyns, 836, 837 (1839); Freeman v. Gib- 453; Burtenshaw v. GUbert, 1 bona (1793), and Baumgarten v, Cowp. 54. Pratt (1796), cited; not reported. PRESUMPTION OF EEVOCATION'. 85 tator, showing that no revocation has taken place, are ad- missible to rebut the presumption. A statute providing generally that no declaration shall be received to establish, a revocation of a will applies only to a case where the will is produced.' In one case it was said: "The declarations of William Keeves on his death-bed, expressive of his belief of the existence of his will, and that it had been left in the hands of John McE.eary, Esq.', who drew and was a sub- scribing witness thereto, if of sound mind at the time, would leave no doubt of the fact that he had not canceled it him- self." ^ Many other cases follow the same line of reason- ing.' Thus, the declarations of unchanged affection for the devisees and of unchanged, intentions have much weight and tendency to overthrow the presumption,* even though made at any time between the time of the execution of the will and his death; but the later they are the more potent.' Mutilation is a revocation usually, but the testator's decla- rations at the time may overcome the presumption raised by the mutilation. Thus, an angry testator tore his will in pieces, but was prevented from farther doing so by a by- stander and the entreaties of the devisee. The jury found he had no intention of revoking it, and the will was held valid.^ If there is a doubt whether the testator tore it or a spoliator, his declarations afterwards made are admissible to overcome the presumption to prevent a failure of justice.'^ The mere fact that the testator knows his will has been destroyed is not conclusive of a revocation; for the pre- 1 Weeks v. McBeth, 14 Ala. 474 * Patten v. Poulton, 1 Sw. & Tr. (1848). . 55 (1858); S. C. 4 Jur. (N. S.) 341; 2 Reeves v. Booth, 3 Mills (S. C), 27 L. J. (P. & M.) 41. 334; S. C. 13 Am. Dec. 679. » Patterson v. Hickey, 33 Geo. 3 Weeks v. McBeth, 14 Ala. 474 156(1861). (1848); Tucker v. Whitehead, 59 6 Doe v. Perkes, 3 B. & Aid. 489 Miss. 594 (1883); Steele v. Price, 5 (1830). See Knight v. Cook, 1 Lee. B. Mon. 58 (1844); Patterson v. 413 (1753), where the pieces were Hickey, 33 Geo. 156 (1861) ; Foster's pasted together and probated upon Will, 13 Phila. 567 (1877): S. C. 34 the filing of a single affidavit. Leg. Int., 233 ; Youndt v. Youndt, 3 " Tucker v. Whitehead, 59 Miss. Grant, 140 (1861). 594 (1883). 86 LOST WILLS. sumption may be rebutted by evidence of his declarations showing that he did not deem it a revocation,' as that it was not by his direction.^ A declaration made seven months before his death, however, was held not to rebut the pre- sumption of revocation.' "The ascertainment of this fact [that it was not revoked] will cast no light on the authen- tication of the copy, and is not preliminary to its introduc- tion. The question in such case is whether the will, of which the proposed paper is a copy, was revoked, or did the testator at the time of his death believe and intend it to be in existence as a valid will." * This intention is best revealed by his acts and declarations which indicate them.' In speaking upon the admissibility and the weight that should be given such declarations it was said: "Declara- tions alone, unsupported by circumstances strongly mark- ing their sincerity and confirming their probability, would of themselves be very unsafe and insuEBcient to repel the presumption of law. All declarations, where you are to rely on the exact words of a casual expression, are liable to be misapprehended — to be misrecollected — to be mis- represented; a slight bias in the mind of the hearer will render the apprehension and the recollection incorrect; the slightest alteration of the expression, by a word or almost a letter, may vary the whole import of the declarations ; an alteration from ' I have ' to ' I had ' a will, would com- pletely change the bearing of the words — the one signify- ing the existence of the will, the other its being no longer in existence ; but, above all, the possible insincerity of declara- tions, particularly about wills, increases the danger of rely- ing upon them. This has always been the doctrine not only of these courts, but of all other courts." ^ Again it was said : " Declarations, coupled with conduct and with acts, and 1 Steele v. Price, 5 B. Mon. 58 ^ Jaques v. Horton, 78 Ala. 238 (1844). (1884). 2 Youndt V. Youndt, 3 Grant, 140 6 Johnson's Will, 40 Conn. 587 (1861). (1874). 3 Collyer v. CoUyer, 4 Dem. 53 « Colvin v.. Fraser, 2 Hagg. 266. (1886); S. C. 17 Abb. N. C. 828. 345, 346(1829). PEKSUMPTION OF KE VOCATION. SV inconsistent with thera, are of weight in proof of intention ;' declarations also, not depending upon the precise words of a particular expression, but connected with extended con- versations, and more especially if not liable to much suspi- cion of insincerity, have greater effect; but even still more when made not upon a single occasion, but repeatedly in the course and current of confidential com^nunications, such declarations are entitled to full attention." ' So if it is proven that a will was once in existence, and no actual destruction is shown, the fact that no declarations of dis- content are shown is evidence tending to show that it was not destroyed by the testator.^ A will was stolen,- and the testator drew up a draft for his solicitor to draw another, to be exactly like the one stolen. A witness wrote out a copy, and this, with the draft, was attached to the petition. This copy was admitted to probate until the original will was found.^ Sec. 60. The testator's conduct may be considered. — Perhaps the decision in Lord St. Leonards' case affords us the best example on. the subject under consideration. In the argument of that case in the Court of Appeals, in answer to the assertion that the presumption of revocation was not sufficiently rebutted, Chief Justice Cockburn says: "You must take into account the improbability of a man: like Lord St. Leonards destroying his will and doing so with the intention of dying intestate. I agree with you that Ave are not to presume crime; but on the other hand we are not to presume imbecility. In substance, we have Lord St. Leonards down to the very last moment of his life say- ing, ' I have made all the testamentary dispositions which a careful man ought to make, which a father ought to make for his family, and I die in peace with that convic- tion.' Are we to discard all that, and simply, upon the 'Colvin V. Eraser, 3 Hagg. 266, Page v. Maxwell, 118 111. 579(1886); 363 (1839). See Mynn v. Robinson, S. C. 8 N. E. Rep. 853. 3 Hagg. 169, 187(1828). 3 Goods of Hilliard, 36 L. T. 328 ^Scoggins V. Turner, 98 N. C. 135 (1856). (1887); S. C. 3 S. E. Rep. 719. See 88 LOST WILLS. grouncl that crime is not to be presumed, to say that the Avill must have been destroyed by him?" The reference to a crime will appear farther on in the quotations herein made. In delivering his opinion the Chief Justice said: "The will was last seen on the 20th of August, 1873; the death of the testator took place on the 29th of January, 1875. The will was kept in a small box placed on the floor of a room called the saloon, on the ground floor of the tes- tator's house. Upon his death it was looked for in that box by, the solicitor employed by the executors, and it could not be found. . . . [Now, where a will is shown to have been in the custody of a testator and is not found at his death, the well-known presumption arises that the will has been destroyed by the testator for the purpose of revoking it ; but of course that presumption may be rebutted bj' the facts. Although presumptio juris it is not presumptio dejure- and of course the presumption will be more or less strong according to the character of the custody which the testator had over the will." After discussion of the ques- tion of custody, from which a quotation is made in full elsewhere,' the chief justice proceeded: "Next comes the question whether it is not probable that the will should have been destroyed by the testator, and here we must look at the position and character of the man. It would be difficult to find a more methodical man of business than the late Lord St. Leonards; it would be difficult to find any one who had a deeper sense of the im- portance of testamentary dispositions. We find that between 1867 and 1873 he made no less than two wills and eight codicils. He always exhibited the greatest possible anxiety to make a proper provision for the members of his family, and more especially for his daughter. Miss Sugden, for whom it is quite clear that he entertained the warmest and fondest affection, and who would be left wholly unprovided for in the absence of testamentary provision made in her favor. He upon all occasions expressed a deep sense of igec. 65. PEESTJMPTION OF EEVOCATION. S9 the duty which every man ought to act upon of making testamentary provision for those who were dependent upon him. We know, also, although of course we might have presumed it independently of any specific knowledge of the fact, that he was quite alive to the danger of destroy- ing one will with the view of making another, and of the necessity of maiiing a will, as it were, ujioflatu, to prevent the possibility of any question arising as to his intention. It must be remembered that it is in evidence that upon two occasions when he was making his will, in 1867 and 1870, there was the greatest difficulty in prevailing upon him to take refreshment, because he would not be interrupted in the work; and he gave as a reason that if anything should happen to him while tlie will was, as it were, in suspense, questions might afterwards arise upon it. " Now, besides that, we have the fact that, from the time of making his will in 1870 down to the time of his death, he was in the constant habit of talking to every one with whom he 6ame in contact — most certainly to all the inmates of the house with whom he was brought into daily contact — of the testamentary provisions he had made, expressing his satisfaction at what he had been able to do for the differ- ent membe'rs of his family, more especially for Miss Sugden, and at his having acquired by his own professional powers and exertions so large an amount of property. The posses- sion of that property, the disposition of that property, and the satisfaction he felt at having made provision for the peerage which he had founded, and for the various mem- bers of his family who were dependent upon his bounty, seem to have been constant subjects of his thoughts, upon which his mind delighted to dwell, and also constant topics of his daily discourse with almost all the persons with whom he was brought into contact. It seems to me utterly impossible to suppose that, under these circumstances, such a man as Lord St. Leonards would voluntarily have de- stroyed this will, whether for the purpose of revoking it or making another, or for any other purpose that could be 9D LOST WILLS. • conceived. My mind revolts from arriving at any such conclusion, and I feel bound to reject it." The Master of the EoUs, Jessel, said : " Every act of his life which is proved, every statement made by him which is proved, in respect of his testamentary dispositions, to my mind point to but one conclusion ; and to arrive at a con- trary conclusion would be to believe that Lord St. Leonards not only spoke a lie but acted a lie to the last moment of his existence." Sec. 61. Examining contents of wilL — The President of the Probate Division, Sir J. Hannen, before the case was appealed, in speaking of the presumption of revocation and the questions involved, said that tlie latter had been reduced to two: (1) What were the contents of the will; and (2) was it revoked or destroyed by the testator animo revocandi. "Now it is necessary that I should deal with those questions in the order in which I have stated them, because it is- obvious that the question whether or no the testator revoked this instrument must depend to a consider- able degree upon what conclusion I may arrive at as to the contents of the instrument itself. It is obvious that where a will, show;n to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole family, carefully arranging the dis- positions which he would make in favor of the sevei-al mem- bers of it; or was it the hasty expression of a passing dis- satisfaction with some one or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument." After having determined at length what the provisions of the will were, the President said of it: "This appears to be a will well considered, dealing with the interests of a PRESUMPTION OF EEVOCATION. 91 large number of his farail}^ settling- certain estates upon the peerage, settling other estates upon his second son, ac- companied by declarations of the testator to those inter- ested, especially to the present Lord St. Leonards, that ■what he was about to do was the fixed determination of his mind ; and I have to consider whether it is probable that he would at some subsequent time change the intentions which he had then formed. "When it is suggested that such a change has come over the mind of the testator we must look for the cause of such a change." ^ Sec. 62. Declarations made at time of tearing will — Kes gestae. — " The execution of the will being established, the next question is whether there was any evidence that it was canceled. On this point I lay no stress upon the declarations of the testator. They were made long after the execution of the will, and shortly before his death. They are not evidence unless they relate to the res gestm or to an act done; as where, by mistake, the will is torn or thrown into the fire. The declarations of the testator are, in such case, evidence where they show the quo animo. The act of canceling is in itself equivocal, and will be governed by the intent. The rule is that if the testator lets the will stand until he dies it is his will; if he does not suffer it to do so it is not his will. It is ambulatory until his death. There must be a canceling animo revocandi. Eevocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation. The evidence here does not warrant ainy such intent. The testator, several months before his death, called for the will, and wished to add a codicil. There is no other act that indicates an intent to make the least alteration. No act was done or dissatisfac- tion expressed upon which to raise a presumption. The iSugden v. Lord St. Leonards, T. (N. S.) 372; 34 W. E. 479; 45 L. E. 1 P. D. 154 (1876) ; S. C. 34 L. L. J. (P. & D.) 49 ; 17 Moak, 453. 92 LOST WILLS. most that can be urged is that the testator expressed a de- sire to make some alteration by way of codicil, from which it is rather to. be inferred that the general features of the will were approved, and that an additional or greater pro- vision was contemplated for some of the objects of bounty. The conclusive answer is that all was inchoate. It rests merely in an intent expressed at one time, and to a single individual. We are left entirely to conjecture whether the testator ever afterwards did a single act to warrant the presumption of canceling the will> in whole or in part. I therefore consider the will as remaining in force at the tes- tator's death." ' Sec. 63. Statute — Nurabei* of witnesses. — A statute provided that if a will be lost or destroyed subsequent to the death or without the consent of the testator, a copy of the same, clearly proved to be such by the subscribing. wit- nesses and other evidence, could be admitted to probate and record in lieu of the original; but in ever\' such case the pre- sumption was of a revocation by the testator, and that pre- sumption had to be rebutted by proof. It was " insisted that the contents of the will must be proved by three witnesses, and that the presumption of revocation, which was raised by law, must be rebutted by three witnesses." But this was not deemed a fair construction. " In our opinion, the true construction is that the execution of the will must, be proved as above stated by the subscribing witnesses [if in life and within the jurisdiction of the court, as in case of probate of a will in solemn form] ; and the destruction or loss of the will, and the facts necessary to rebut the pre- sumption of revocation. by the testator, may be proved by 'such other evidence' as satislies the conscience of the jury that the will so executed or testified to by the subscribing witnesses was lost or destroyed since the death of the tes- tator, or without his consent before his death." ^ ' Dan V. Brown, 4 Wend. 487, ' ^ Kitchens v. Kitchens, 39 Geo. 490 (1835); S. C. 15 Am. Dec. 395. 168 (1869); S. C. 99 Am. Dec. 453. PEESUMPTION OF EEVOCATION. 93 Sec. 64. Will in possession of another. — If the will, after its execution, was placed in the hands of another, and so remained until after the testator's death, and on search is not found, the presumption of revocation, in many in- stances, is rebutted, unless circumstances are proved which overthrow the rebuttal or prevent its arising. It is the prevailing rule that if the will is not forthcoming at the death of the testator its revocation will be presumed, whether it was in his personal possession or in the posses- sion of another; but in the latter instance the presumption is quite a weak one. It may be shown that the custodian had exclusive possession of the will, that the testator could not have obtained possession of it unless with the custo- dian's knowledge, and that to his knowledge the testator never had possession of it. In such a case the presumption of revocation, arising from the supposed destruction of the will, is rebutted; and that presumption is very much strengthened by shpwing declarations of the testator, down to near the time of his death, expressing satisfaction with the will.' " But that presumption [of revocation] is en- tirely overcome and rebutted when it appears that, upon the execution of the will, it was deposited by the testator with a custodian, and that the testator did not thereafter have it in his possession or have access to it."^ The decla- rations of the testator are admissible to prove where he deposited his will.' If possession is shown to have been in a third person, or if the will is traced into the possession of a depositor, the burden of retracing the will into the tes- tator's hands lies then upon those opposing its probate. Thus, it was said that those opposed to a will which had been traced to the possession of another, " who had been 1 Hildreth v. Schillinger, 2 Stock. 2 Schultz v. Sohultz, 35 N. Y. 653 Ch. (N. J.) 197 (1854); Page v. (1866). Maxwell, 118111. 579(1886); S. C. 8 'Jackson v. Betts, 6 Cow. 377 N. E. Eep. 852 ; Jackson v. Betts, (1826), citing Dan v. Brown, 4 Cow. 6Cow. 377 (1826); Tynan V. Paschal, 488(1835); S. C. 15 Am. Dec. 395. 37 Tex. 286 (1863); S. C. 84 Am. Deo. 619. 94 LOST WILLS. intrusted with the keeping and preservation of it," "must show to your [the jurors'] satisfaction that it came again into her own possession, or was actuall}' destroyed by her direction, or it will not be held or presumed to be revoked by her, but will be deemed to remain unrevoked by her." ' So if it is shown that the testator had possession of the will, and while having it M'ithin his manual control was taken sick and so confined to his room that he could not leave it, and after such confinement made declarations which show that he then thought his will was in existence and he was satisfied with it, the presumption of revocation is rebutted, unless it is further shown that it was brought to him and he destroyed it or had an opportunity to do so.'' Sec. 64a. War. — A. made his will in 1855. In May, 1857, he was driven from Delhi, India, where he resided at the time of the execution of his will, by the Indian mutiny war. He left his will there and died in the next month, June. On an affidavit of an attesting witness as to its due execution and contents, together with the wid'ow's affidavit as to the contents, probate of the will was granted.' Sec. 65. Charge of fraudulent destruction — Presump- tion — Possession. — A destruction by a third person is not to be presumed ; for it is a fraudulent destruction, and frajid 1 Dawson v. Smith, 3 Houston daughter was his housekeeper and (Del.), 335 (1866). had an interest against the will. ° Sugden v. Lord St. Lfeonards, At his death, after proper search supra; Foster's Appeal, 87 Pa. St. made three days thereafter, it 67 (1878) ; S. C. 1 Am. Prob. Cas. could not be found. It was held 485 ; 30 Am. Rep. 340. The facts that the evidence was not suffi- in the Pennsylvania case ai-e very cient to overcome the presumption similar to those in Knapp V. Knapp, of revocation, nor to prove that it 10 N. Y. 276 (1851), and a decision was in existence at his death, nor in the latter case was made dia- to show a fraudulent destruction metrically opposed to the> former, in his life-time. The case cer- In the New York case it was tainly draws a wrong conclusion proved that a month before the from the facts proved, and cannot alleged testator's death he said his be accepted as an authority on this will was then in a certain desk at point. his residence. He was then eighty ^ Goods of Gardner, 1 Sw. & Tr. years of age and very infirm. His 109 (1858); S. C. 27 L. J. (P. D.) 55. PRESUMPTION OP EEVOOATION. 95 is not presumed.^ If it is cliarged that an interested person destroyed it, the interest and an opportunity to destroy it must be affirmatively shown; for the court will not pre- same that a practical custodian, by reason of the bare custody, destroyed it.^ In case of, a charge of spoliation, stronger evidence to rebut the presumption of revocation is required than on a bare charge of loss; for in such a case the presumption of innocence of the charge must also be overcome;^ but as we have said elsewhere, if the spoliation is clearl}' proved, many things will be presumed that other- wise would not 1 e.* Where a will had been seen in the testator's custody and could not be found in his depositories after his death, but there was evidence of his declarations recognizing its existence up to within three weeks of his death, and none of any change of an intention during tliose three weeks; and the only person who was interested in its destruction had access to and made search in the deposi- tories before they were searched by any other person, — these facts, coupled with the non-appearance of the person interested in its destruction, were held sufficient to rebut the presumption of a revocation.^ In this connection arises the question of an exclusive possession in the testator; for if it was an exclusive possession, stronger evidence of its non- revocation will be required than if it were not. If others had access to it, especially if it was to their interest to have it destroyed, slighter evidence to overcome the presumption of revocation will then prevail. The illustration just given is an instance of this kind. Another was, where the entire family of the testator had access to the trunk where he kept it, and his declarations of satisfaction with his will were proved up to near his death, — it was established ; for the will 1 Hatch V. Sigman, 1 Dem. 519 Phil. 136(1819); Helyar v. Helyar, (1883). 1 Lee, 473 (1754). 2 Jones V. Murphy, 8 W. & S. 375 ■* Sec. 94. (1844). s Finch v. Finch, L. R. 1 P. & M. 5 Wargent v. Hollings, 4 Hagg. 371 (1867); S. C. 36 L. J. (P. & M.) 245 (1833); Loxley v. Jackson, 3 78; 16 L. T. 368; 15 W. R. 797. 96 LOST WILLS. was not aa equal one, and it was to the interest of some of the members of the family that it be destroyed.^ In speaking of the custody of the will, Chief Justice Cockburn, in the case already quoted from at length, said : "Now here we have to observe that the custody was any- thing but a close custody. The box was kept in a room on the ground floor, common not onW to the inmates of the house but to any one who had obtained access to it. It was kept in a common box, easily opened, and the key was kept in an escritoire not always under lock and key. It is in evidence that, of the different keys in the house, there were no less than five by which the escritoire might be opened, and the will was, no doubt, known to the inmates of the house, or to those who had been its inmates, as being kept in this box ; for, as a matter of fact. Lord St. Leonards was constantly, or at all events frequently, en- gaged in making wills or codicils, testamentary disposi- tions of one sort or another, and upon all these occasions some of the servants of the house were called in to witness the execution of the testamentary document, and therefore would well know that the box was the place for the de- posit of the testamentary papers of Lord St. Leonards." Proceeding further he said: "Now the last time the will was seen was by Miss Sugden, on the 20th day of August, 1873. Lord St. Leonards was taken ill in September, 1873, and was confined to his room from that time to Christmas, 1873, and during the whole of that time the box was kept by Miss Sugden, as she tells us, in her own room; when he again rejoined the family down stairs she replaced the box in the saloon that he might not miss it, and it remained there until his last illness commenced in March, 1874. It was then again taken possession of by Miss Sugden and kept by her until Lord St. Leonai'ds' death ; therefore it t 1 McBeth V. McBeth, 11 Ala. 596 Cas. 435 ; 30 Am. Eep. 340 ; Knapp (1847); Weeka v. McBeth, 14 Ala. v. Knapp, 10 N. Y. 276 (1851). See 474 (1848); Foster's Appeal, 87 Pa. comments on this case, sec. 64, St. 67 (1878); S. C. 1 Am. Prob. note. PEESDMPTION OF EEVOCATION. 97 could only have been got at by him between Christmas, 1873, and March, 1874. Long after March, when he was stricken with his last illness, and from which time he was confined to his own bed-room, he again and again re- ferred to the various provisions he had ma;de by the will — in other words, referred to the will itself as still subsisting ; and this again adds to the vast improbability of his having destroyed the will. The only conclasion I can arrive at is, not that he destroyed it, but that it was 'clandestinely got at by somebody and surreptitiously taken away; who that somebody is is one of those mysteries which time may pos- sibly solve, but which at present it would defy human in- genuity to say." ' Sec. 66. Declarations to show a revocation. — It is laid down broadly that the declarations of the testator to show a revocation are not admissible for that purpose; for the law has provided ways in which a will may be revoked, and'these must be pursued;' but his declarations made at the time he destroys his will and in connection therewith are admissible to show his intent in doing so. Thus, a tes- tatrix destroyed her will, stating at the time her intention in doing so. Subsequently, on the same day, she said she destroyed the will with the intention of reviving a former will. Under the circumstances the court refused to pro- bate a draft of the destroyed will.' But, as has elsewhere been stated,* his declarations of having destroyed or re- voked his will are admissible to strengthen the presumption of revocation, and to rebut the evidence given to overthrow such presumption.' But, notwithstanding declarations of dissatisfaction and declarations of having destroyed the will, it may be set up when such declarations are mani- festly false.® 1 Sugden v. Lord St. Leonards, * Sec. 46. supra. 6 Weeks v. McBeth, 14 Ala. 474 2 Jackson v. Knififen, S Johns. 81 (1848), (1806). * Hildreth v. Schillinger, 3 Stock. 3 Goods of Weston, L. R. 1 P. & Ch. (N. J.) 197 (1854). D. 633 (1869). 7 98 LOST WILLS. Sec. 67. Filling blanks — Striking out clauses.— Where a testator struck out several clauses after he had executed his will, parol evidence was admitted to show that fact, and his will as executed was probated.^ But where it was claimed in the case of a lost will that certain blanks were left in the will as executed, and these were filled out when the will was produced for probate, it being possible from the evidence that these blanks were filled out either before or after its execution, it was held that the presumption of law was in favor of the right time to make the instrument valid, and that the blanks were filled when it was exe- cuted.^ Seg. 68. Duplicate wills — Copies. — Occasionally a will, as a matter of precaution, is made in duplicate — one copy left with a holder for safe keeping, and the other retained by the testator. This seems to be the practice in England much more than in this country. When such a thing is done, and on the death of the testator the cop}'^ he retained is not forthcoming, the presumption is that it was destroyed by him animo revocandi,^ &nd the duplicate is also canceled.* Where a testator executed his will in duplicate, retained one copy and placed the other on deposit in India, where it was executed, on his dying in England probate of the copy was refused, the copy he had retained not being forth- coming.' But this presumption of revocation may be re- butted the same as in any other case. Thus, a testator executed his will and left it with his solicitor, taking a copy with him and going abroad in the army. He never returned. Upon testimony showing that the will never J Quinn v. Quinn, 1 T. & C. 437 Mason, 2 Comyns, 453 ; Onions v. (1873). ' Tyrer, IP. Wms. 343(1716); Goods 2 Graham v. O'Fallon, 4 Mo. 601 ■ of Haines, 5 N. of Gas. 631 (1847) ; (1835). Boughey v. Moreton, 3 Hagg. 191, ' Pemberton v. Pemberton, 13 note (1758). See Saunders v. Saun- Ves. Jr. 290 (1807). ders, 6 N, of Gas. 519 (1848). 4 Richards v. Mumf ord, 3 Phil. '= Colvin v. Fraser, 2 Hagg. 266 23 (1813); Burtenshaw v. Gilbert, (1839). 1 Cowp. -54 (1774); Lindsey v. jriiJiiOUiU-jfAiuiN va JKJivuuAiiuiN. left the solicitor's possession, who was dead, that the orig- inal could not be found, the copy was admitted to probate.' "Where a testator, having executed his will in duplicate, gave one cop}' to his wife, retaining the other, and the wife's copy was not forthcoming at his death, it was held that the copy produced was the one helkept, and that there was no revocation.^ Sec. 69. Change of situation — Poverty of child. — " So I apprehend on a question of revocation arising from an equivocal act of a testator leaving it doubtful whether the act was done animo revocandi, or where the will cannot be found at the testator's death, the party claiming in opposi- tion to the will may give evidence of such changes in the property of the testator, or in the situation of his family, as might have furnished a reasonable motive for the revo- cation." But proof of the poverty of one of the testator's children, who took nothing under the lost will, is not ad- missible to strengthen the presumption of revocation arising by reason of the will not being . found, unless there is such a change as above indicated.' Sec. to. Examples — Presumed continuance of will. — A testator, in a lit of delirium tremens, tore his will in pieces, which were preserved by others. On his recovery he was informed of what he had done, and he answered that he must have been mad when he tore the will; that he would make another one, which intention he did not carry out. It was held that the will was not revoked.* Wherea will was found in sheets„scattered through the rub- bish contents of a barrel in an out-of-the-way place, twenty- five years after the testator's death, with a piece torn out of one of the pages, the presumption was held to be that it was revoked." The testator was seen once or twice to take 1 Goods of Pechall, 6 Jur. (N. S.) ■• Brunt v. Brunt, 3 P. & D. 37 406(1860). (1873); S. C. 5 Moak, 530, citing 2 Snider v. Burke, 84 Ala. 53 Borlase v. Borlase, 4 N- of Cas. (1888); S. C. 4 So. Eep. 325. 106, 189. 3 Betts V. Jackson, 6 Wend. 173 ' Lawyer v. Smith, 8 Mich. 411 (1830). (I860); S. C. 77 Am. Dec. 460. See 100 LOST WILLS. papers from his desk and burn them. Once he took some- thing looking like papers to another and distant place, act- ing shyly about it. This was held not to warrant a belief that the will was destroyed. "If it had been perceived even that the will was taken from the desk by the testator, it would be no evidence of its subsequent destruction. But to proceed a step further, and contend that an unknown paper was taken, that the will was that paper and must have been canceled, appears to my mind a gratuitous as- sumption not warranted by the testimony.'" It was also ruled at the hearing of this case "that if the will was duly executed, and once an existing will and in the hands of the testator, unless there be evidence of its having been can- celed or revoked by the testator, the law presumes its con- tinued existence to the time of his death." Of this rule it was said, " that this is a principle of the common law seems to me well settled by authority." But on appeal the case Avas reversed on this latter point, and it was declared thai there was no such presumption of the continuance of the will.^ The ruling on this point, however, does not affect the first one stated in the case, if it is borne in mind that the mere absence, unaccounted for, of the will at the testa- tor's death raises a presumption of revocation; for if that presumption was rebutted, the acts detailed would not re- establish it. In a JTew York case it was said : " There is no direct proof that Mrs. CoUyer destroyed her will. But the proof that the will was not found after her death is sufficient proof that she destroyed it animo revocandi. When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof. He who seeks to establish a White's Will, 35 N. J. Eq. 501 2 Betts v. Jackson, 6 Wend. 173 (1874). (1870). J Jackson v. Betts, 9 Cow. 208 (1828). PRESUMPTION OF REVOCATION. 101'-,. lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show by facts and circumstances that the will was act- ually fraudulently destroyed. In Loxley v. Jackson' the will was last seen in a small box in the bed-room of the de- ceased, but was not found after her death; and it was held that the presumption of law was that the testatrix destroyed it animo revocandi; that the law did not presume a fraud; and that the burden of proof was on the party claiming under the will. " In Betts V. Jackson ^ a will was duly executed and in the custody of the testator for five years afterwards and within ten months previous to his decease, but could not be found after his decease; and it was held that the legal presump- tion was that the testator had destro3'ed it animo revocandi, although it appeared that within a fortnight before his death he applied to a scrivener who had drawn a codicil to draw another codicil to his will; which, however, was not drawn, nor was the will at the time produced to the Scriv- ener. In Knapp v. Knapp ' it was held that proof that a will executed by a deceased person was said by him, a month previous to his death, to be in his possession in a 'cer- tain desk at his house ; that he was then very aged and feeble; that his housekeeper was a daughter having an in- terest adverse to the will; and that the same could not be found on proper search three days after his death,— is not sufficient evidence of the existence at the testator's death or of a fraudulent destruction in his life-time to authorize parol proof of its contents." * 1 3 Phil. 126. that the proof was sufficient to 2 6 Wend. 173. show that it had never been can- ' 10 N. y. 276. celed or destroyed aJiimorewoco/idi. iCollyer v. Collyer, 110 N. Y. 481 See Foster's Appeal, 87 Pa. St. 67; (1888); k C. 18 N. E. Rep. 110. We S. C. 1 Am. Prob. Cases, 484; 30 have no hesitancy to say that this Am. Rep, 340, which immediately last case was wrongly decided, and follows. 102 LOST WILLS. "There is ample evidence to rebut the presumption of a revocation by thb testator. Many facts contribute to this result, among which these leading circumstances appear : Isaac P. Foster was never without a will for the last fifteen years of his life, having had seven written under the super- vision of counsel, and made necessary by the nature and amount of his estate, the number of his children, and ad- vancements made to some, and those matters were often dwelt upon by himself. He himself regarded his will of 1875 as existing until and while Ij'ing on his death-bed, when too- feeble to destroy it without assistance. Up to this time he made efforts to procure a codicil to alter the will in a certain aspect, made necessary by a failure in the payment of interest on certain bonds, but, being prevented by the extremity of his last illness, died under the belief that he had arranged with his executors to pay these leg- atees money instead of bonds. These and corroborating circumstances show that the testator had no thought of a revocation. That the presumption of a personal revocation can be thus rebutted is shown by the authorities cited by the appellees. The presumption of revocation arises from the fact that the will was known to be in the possession of the testator himself, and that it cannotbe found after his death. It is therefore a natural presumption merely, because it cannot be supposed the testator would part with it unless he intended to put it out of the way ; and because it is out of the way and cannot be accounted for, the pre- sumption that he intended to revoke it arises. Like other natural presumptions drawn from evidence, and not declared de jure ior some legal end, it must give wa}' to stronger evidence of the continued existence of the will, and the testator's reliance upon it as the disposition he had made of his property." ' Sec. 71. Sufficiency of evidence to overcome presump- tion. — To rebut the presumption that the testator destroyed 1 Foster's Appeal, 87 Pa. St. 67 (1878); S. O. 30 Am. Rep. 340; 1 Am. Prob. Rep. 435. PEESUMPTION OF EEVOCATION. lOiJ his will animo revooandl, it is said that the evidence must be such " as produces a moral conviction to the contrary." ^ The evidence on this point must be clear and satisfactory.^ And it was said, " nor does it require evidence amounting to positive certainty, but only such as reasonably produces moral conviction." ' In case of a charge of spoliation, such charge must be supported by stronger evidence tHan in case of a loss.* Seo. 72. Burden on propounder. — "It is incumbent upon a party who seeks to establish a will to repel that presumption [of revocation], and show that it was improp- erly destroyed."' This is especially true in cases of fraud, that is, to establish the fraud." Sec. 73. (Question for jury. — "Whether or not the pre- sumption of revocation is rebutted is a question for the jury, or for the court when tried by it.'' In case of a charge that the will was lost, before the jury can find for it they must find that it was in fact lost.^ Sec. 74. Pleading. — The petition must contain an alle- gation that the will was unrevoked and uncanceled at the death of the testator, to w^hich, of course, the proof must conform.' 1 Foster's Will, 13 Phila. 567 5 idley v. Bowen, 11 "Wend. 237 (1877); S. C. 34 Leg. Int. 222. (1833); Welch v. Phillips, 1 Moo. 2 Eckersley v. Piatt. L. R. 1 P. & P. C. 299 (1886) ; Scoggins v. Tui- P. 281 (1866); S. C. 36 L. J. (P. D.) ner, 98 N. C. 135 (1887); S. C. 3 7; 15 '^. R. 232; 15 L. T. 327. S. E. Rep. 719; Tynan v. Paschal, 3 Davis V. Davis, 2 Addams, 223 27 Tex.. 286 (1863); S. C. 84 Am. (1824). Opinions and mere suspi- Dec. 619. cions cannot overcome the pre- * Idley v. Bowen, 11 Wend. 227 sumption of revocation. Fuentes (1833); Betts v. Jackson, 6 Wend. V. Gaines, 24 La. Ann. 85 (1873). 173 (1830). There is no particular standard; 'Dawson v. Smith, 3 Houston each case is judged on its own (Del.), 335 (1866). ' peculiar circumstances. Sugden v. 8 Morris v. Swaney, 7 Heisk. 591 Lord St. Leonards, supra. (1873). * Wargent v. Rollings, 4 Hagg. 9 Newell v. Homer, 120 Mass. 277 345 (1832). (1876). CHAPTER YII. PROOF OF CONTENTS. Sec. 74:«. Order of proof — Burden. — The next order of proof is that of the contents of the lost vvill,^ which must be proved substantially as alleged;^ and the burden of proving the contents is on the propounder.' Sec. 75. Secondary eyidence — Parol — Production of original. — " The proof of a lost or destroj'^ed w\ll proceeds upon the theory that it is not in existence and cannot be produced before the surrogate, and therefore the case is one of secondary evidence exclusively."* "We do not doubt that parol evidence of the contents of a will lost or mislaid may be received. Such secondary evidence is admissible in cases of deeds and records lost or destroyed, and wills have been established on the same evidence." * "I see no diiference in this respect between a deed and a will. It would be cause of great injustice if the accidental or fraud- ulent de'struction of such an instrument should deprive parties interested of the right to give evidence of their contents." ^ In another case the question was discussed more at length, wherein it was affirmed that such a proceed- ing could not be characterized as the making of a will for the deceased. It was said: "The will then being in exist- ence at the, death of the testator, unrevoked by him, its loss or accidental destruction differs not from the loss or ' Morris v. Swaney, 7 Heisk. 591 (1844) ; Durfee v. Durfee, 8 Met. (1872);Podmore V. Whatton, 3Sw. 490, note (1844). & Tr. 449 (1864); S. C. 33 L. J. (P. lEveritt v. Everitt, 41 Barb. 385 & D.) 143; 10 L. T. 754; 13 W. R. (1864). 106. s Davis v. Sigourney, 8 Met. 487 2Mahood v. Mahood, 8 Ir. Eq. (1814). 359 (1874). 6 Clark v. Wright, 3 Pick. 67 3 Newell V. Homer, 120 Mass. 377 ; (1835). Davis V. Sigourney, 8 Met. 487 PEOOF OF CONTENTS. 105 destruction of any other solemn instrument, such as a deed, a note or bond or a record. Ttie contents, there- fore, may be proved in like manner, as shown by the au- thorities cit€«i. It is a postulate of the question that the testator left behind him at death a last will in writing, legally executed and published, unrevoked by any act or direction of his. That the law will not tolerate any mak- ing of a will for him by other means than his own act in writing duly executed is clear. But such a will having a legal existence, yet accidentallj'^ lost or destroyed, the es- tablishment of its contents is not the making of a new will, but a restoration merely of that which the testator himself made and left behind him to govern his estate. There is no greater sanctity in this respect than the restoration by parol evidence of other instruments equally solemn and having an equal effect in the disposition of property. The law simply comes in aid of his own legally performed act, to prevent his intentions from being frustrated or de- frauded." ^ These quotations are abundantly supported by the au- thorities, affirming that parol evidence in such instances is admissible to prove the contents of the lost or destroyed will.^ Where a will was torn in pieces by the testator's son after his father's death, the pieces were put together and oral evidence to identify them was also admitted.' If an unprobated will may be used in evidence, as in an action for partition, parol evidence of its contents, when it is lost or destroyed, is admissible, the execution being shown and the presumption of revocation being rebutted.* 1 Foster's Appeal, 87 Pa. St. 67 (1883); Dawson v. Smith, 3 Houst. (1878); S. C. 30 Am. Rep. 840; 1 (Del.)835(1866);McBeth v. MoBeth, Am. Prob. Rep. 435. 11 Ala. 596 (1847); Gaines v. Hen- 2 Harris v. Tisereau, 53 Geo. 153 nen, 34 How. 553 (1800); Burge v. (1874); S. C. 21 Am. Rep. 243; Hamilton, 73 Geo. 568 (1884). Reeves v. Booth, 3 Mills (S. C. ), ^ Foster v. Foster, 1 Addams, 463 334 (1818); S. C. 13 Am. Dec. 679; (1833). Timon v. Claify, 45 Barb. 438 (1865} ; < Reeves v. Booth, 3 Mills (S. C), Southworth v. Adams, 11 Biss. S56 334 (1818); S. G. 13 Am. Dec. 679. 106 LOST WILLS. Sec. 76. Best evidence — Copy. — In one case it was said that the best evidence must be produced, and that a copy was better than parol evidence.' In another it was said that the copj'^ must be produced;^ while in another it was said only that a copy is the best or better evidence than parol evidence — which statement no one will contra- dict.^ And it is undoubtedly true that a copy, after it is shown to be accurate, may be introduced to prove the con- tents of the original.* But the production of a copy does not dispense with the preliminary evidence of execution and to rebut the presumption of revocation.' In the one case it was said that the copy was admissible, and the suf- ficiency of the search, proof of its execution, whether de- stroyed or canceled or lost by accident, etc., " is a question not going to the admissibility of a verified copy, but a fact to be determined by the jur^'^, if there be one, on a con- sideration of all the circumstances proved.'' ^ But there is no presumption that such a copy was made, and the pro- pounder is not bound to show that such was the fact. It would, however, impose no burden on him to be first re- quired to show that he found no purported copy of the will. Yet the writer is inclined to think that an objection to the admission of oral evidence would not lie for the rea- son that no evidence had been produced to show there was no copy known to the propounder to be in existence. The production of a copy does not, however, exclude oral evi- dence of tlie contents of the will. N'or is a failure to prove an alleged copy to be in fact such, sufficient to defeat the 1 Apperson v. Dowdy, 82 Va. 776 (P. & D.) 143; 10 L. T. 754; 13 W. (1887); S. C. 1 S. E. Rep. 105. R. 106; Jaques v. Horton, 76 Ala. 2 Morris v. Swaney, 7 Heisk. 591 288 (1884) ; Goods of Pechell, 6 Jur. (1872). (N. S.) 406 (1860) ; Everitt v. Everitt, 3 Happy's Will, 4 Bibb, 553(1817). 41 Barb. 385 (1864); Forbing v. *Wilbourn v. Shell, 59 Miss. 205 Weber, 99 Ind. 58S (1884); Colvin (1881) ; Apperson v. Cottrell, 3 Port. v. Fraser, 2 Hagg. 266 (1839). 51 (1836); S. C. 29 Am. Dec. 239; « Goods of Pechefl, 6 Jur. (N. S.) Goods of Thornton, 2 CUrteis, 913 406 (1860). (1841); Folmo.e V. Whatton, 3Sw. « Jaques v. Horton, 76 Ala. S38 & Tr. 449 (1864); S. C. 38 L. J. (1884). PEOOF OF CONTENTS. 107 probate. " Although the proponent produced a paper pur- porting to be a copy, and it may be expected that she was prepared to establish it, if she is unable to do so, she may abandon the attempt, and prove the contents by compe- tent parol evidence. The failure to prove the copy, under the circumstances, is a matter to be considered in weighing the evidence, and determining its credibility and suffi- ciency."^ Whether or not the copy should be verified by affidavit depends upon the local practice. Usually there is no harm in admitting a copy thus verified; but witnesses may be called and by oral testimony identify the^cop}"^, and it may then be introduced.^ If a will has been probated and the record and original destroyed, parol evidence is admissible, and a copy cannot be demanded.^ Even at an early day, when there was no statute making the probated copy admissible in evidence if the original was lost, such copy was evidence.* A wil' made and attested in Queens- land WHS proved and lodged in the supreme court of New South Wales, at Sidney. The executor, having applied for probate in Ireland, proved by one of the attesting wit- nesses, to whom only a copy was exhibited, its due execu- tion, and upon the joint affidavit of a solicitor and an officer of the court of Sidney that they had inspected the will there, and had set out a true copy of it in the affidavit, and on proving the handwriting and signatures of the tes- tator and attesting witnesses to the original, there being no suspicious circumstances attaching to the will, it was ordered probated.' Sec. 17. Copy required by statute — SuflBciency of evi- dence. — ■ In some states, before a lost or destroyed will can be probated or established, it is provided by statute that ijaques v. Horton, 76 Ala. 238 Brady v. Walls, 17 Gr. Ch. (Canada) (1884). 699 (1871). ^Apperson v. Cottrell, 3 Port. < Jackson v. Lucett, 3 Cai. 363 (Ala.) 51 (1836); S. C. 29 Am. Dec. (1805). 239. ' Wilson v, Galium, L. E. 9 Ir. Eq. ' Apperson v. Dowdy, 83 Va. 776 150 (1888). (1887); S. C. 1 8. E. Rep. 105. See 108 LOST WILLS. " the provisions shall be clearly proven by two witnesses, or by a correct copy and the testimony of one witness." ' In New York a similar statute is in force, and it was held that a cop}"^ made by a third person is competent evidence, and complies with the requirements of the statute.^ Itf Indiana a testator took his will to the office of the county for the record of deeds and mortgages and had it recorded. This copy was held to be admissible in evidence. " "We think that the copy found of record was such as complies with the requirements of the statute. It is immaterial for what purpose the copy was made; for if the copy is an ac- curate one, it is sufficient under the statute. "When it is shown, as it was here, that the will was executed and de- posited for record, and that it was copied in one of the books of record, and this record was read, there was evi- dence as to its contents independent of the copy itself. This evidence came from more than one witness. It came from the deputy-recorder who copied the will into the rec- ords, from the witness who went with the testator to the recorder's office, from the witness who testified that the copy was a true one, from the witnesses who testified that the testator told them that the will had been deposited by him for record, and from the witness who testified that the original was taken by the testator from the office of the recorder after it had been recorded. "Where a copy is shown to be a true one by the testimony of one witness, and where it is shown to have been copied by the person with whom it was deposited by the testator and by his direction, we do not believe it was necessary to prove the exact contents by any other witness, but that it is sufficient if some other witness state in general terms the provisions of the instru- ment. The- record of the will was not competent evidence as a record, for the will was not entitled to go upon record, but it was competent for the purpose of exhibiting a copy of the instrument. ' It did not have the force of a record, 1 E. S. of Indiana, 1881, sec. 2609. 2 Everitt v. Everitt, 41 Barb. 385 (1864). PEOOF OF CONTENTS. XV\) but it did exhibit a copy of the will, and, when proper sup-, pleraentary testimony was given by the person who made the copy, the instrument as copied was properly read in evidence." ' Sec. 78. Draft. — It occasionally happens that the per- sons who drew the bill first made a draft of it, and pre- served this draft. This is evidence a grade lower than that of a copy; for the latter is supposed to be word for word with the original, while the former is only its outlines, al- though it may be shown to be an exact copy, or that the original was copied word for word from it. This draft is not admissible without setting forth how the original was lost.^ But " the draft ivould not, in any such case;, be valid as a draft; it would onl}' be evidence of the contents of a valid will."' If both a draft and parol evidence as to the contents are put in evidence, the two must be placed side bv side, and out of them the court will extract the contents of the will proved.* In one instance the draft was held sufB- cient evidence of the contents.' Sec. 79. Memoranda made by testator. — Memoranda, made by the testator, of the contents of his will, or of a part of it, are admissible in evidence to prove the contents.^ Lord Sugden's case affords the most striking example of this kind of which there is any instance on record. In that case the codicils were found, and these were used not only to corroborate the testimony of the witness testify- ing to the contents, but to prove the contents of the will. In the will-box along' with these codicils were found several memoranda in the handwriting of the testator. They were papers " which were found in the wiU-box, evi- iForbing v. Weber, 99 Ind. 588 « Burls v. Burls, L. E. 1 P. & D. (1884). 473(1868). 2Pinhallow V.Robinson, 3 Hagg. sWyckoff v. Wyckoff, 1 C. E. 189, note (1733) ; Lillie v. Lillie, 3 Gr. 401 (1863). Hagg. 185 (1839). « Foster's Will, 13 Phila. 567 sColvin V. Fraser, 3 Hagg. 366 (1877); S. C. 34 Leg. Int. 333. (1839), 110 LOST WILLS. dently placed there by him to be seen and dealt with in connection Avith his testamentary papers, and which bear internal evidence of having been drawn up, as Miss Sugden says they were, while he was in the act of preparing his will. She has described the mode in which those papers were used, and I think it clear that they do represent what Lord St. Leonards intended to do at the time when he was draw- ing the will in question. 'No doubt, as Dr. Deane has said, they do not in themselves prove that what is there jotted down was embodied in the will; but, having regard to the manner in which they were deposited with the other papers, they lend corroboration, and, as it seems to me, strong cor- roboration, to Miss Sugden's statement as to the several legacies, particulars of which, in fragments, appear on these papers." The court then proceeds to analyze the following memoranda, in the testator's handwriting, which were ad- mitted in evidence: c. S. Cd. . . . Her dau . . Aug Girls Ht Florence , Jt.P. ... " J." Legs. Kingsivood. 750 F. £300 a yr. 6,000 200 Et. M. Q. A. B. 100 Legs. 300 otliep Estates. 450 £150 p. ann. 3 Girls, 240 200 100 200 8,. 540 Exps .' 2,000 Jt. Debts,etc ( 2,500 Exps Persl. est.... 21,240 j 1,000 Debts, etc 14,040 5,500 Surplus;.... 7,200 8,540 Edwd 720 £14,040 £6,480 PKOOF OF CO^'TENTS. 111 March, 1870. Equitable 10,000 Do. say 200 Railway .' 3,000 Do 800 Turkish bonds ■.. 3,420 £4,000 India, 5 p. Ct 1,120 10,000 Balce. at Bankers 1,100 1,200 Arrears of rent, say 2,000 20,640 600 Arrears of pension, say 600 9,500 21,240 15,100 Sec. 80. Use made of the above memoranda. — Of this memoranda the court made the following use: "In paper * J ' the late Lord Leonards has enumerated on the one side the various. legacies which he evidently cootemplated intro- ducing into his will, and the first is ' C. £750,' and no one has doubted th^tthat means Charlotte, £750. That, there- fore, as it seems to me, is a corroboration of Miss Sugden's statement that the will did contain this bequest: ' I also give the sum of £750.' Under the initial of ' C are the figures £6,000. That, I take it, is a corroboration of Miss Sugden's statement that the will contained this bequest: 'I give to my daughter Charlotte a legacy of £6,000, which I direct to be paid out of the policy moneys of £10,000 issued on my life.' The next is ' S. Cd., 200.' That confirms this paragraph in Miss Sugden's statement: ' I give £200 to my daughter Sophia Cleveland, and £100 to her daughter.'. In the will as put forward by Miss Sugden it is £100 to her daughter Sophia, but it does not go on to say anything about a gold watch and chain. There was an inaccuracy with regard to this in Miss Sugden's original statement ; but I shall deal with those several inaccuracies by themselves, and therefore now pass on to those several bequests as they appear in exhibit ' J.' The next is ' Aug.,' which evidently is intended for Augusta, '£300.' Then ' Girls, £450.' Then 112 LOST WILLS. 'Ht.,' which is evidently intended for Harriet, '£200.' ' Florence, £200.' ' Juliet P.,' which is intended for Juliet Pearson, '£200.' And then there is anqlher sum of £200, which is unappropriated by any initial put to it by Lord St. Leonards, but which Miss Sugden says was £200 to her sister Caroline Turner. Then we have 'Expenses and debts ; ' and opposite expenses is ' £2,000, Jt.' That corrob- orates Miss Sugden's statement that the will contained this provision : ' I further direct that ray executor pay the sura of £2,000 to the trustees of the settlement of my daughter Juliet, made on her marriage with Kenneth Dixon, payable by my bond to the said trustees.' Her statement explains how that came to be put down under the head of ' Expenses and debts' instead of taking its place among the bequests to which I have already called attention. " Now, on the other side is the heading, ' Kingswood, F., £300 a year.' That corroborates Miss Sugden's statement that the will contained this provision: 'That if my per- sonal estate should be insufHcient for the payment in full of the pecuniary legacies bequeathed by me, and to dis- charge my testamentary and other expenses, until they shall have been fully paid, my son Frank shall receive £300 a year out of the Kingswood estate, the rest of the income to be applied to make up the deficiency.' There does not only appear, in document J., ' F., £300 a year,' but there also appears ' Legs.' (legacies, that is), as being amongst the charges upon Kingswood, in addition to the charge which is designated by the letters ' Rt. M., Q. A. B.' (which, trans- lated, means 'Eobert Mann, Queen Anne's Bounty '), which is a confirmation of Miss Sugden's statement that this pas- sage was contained in the will : ' I further charge my estate at Kingswood with the annual payment due from mj' son- in-law, the Eeverend Eobert Mann, to Queen Anne's Bounty for the building of the vicarage of Long Walton, in Leices- tershire.' There then is to be found this : ' Estate, £160 per annum; three girls.' I have looked at the original document, and I must say it appears to me that there was PEOOF OF CONTENTS. 113 a word before the word 'estate' — the word 'other.' That has not been spoken to b}' any witness, and therefore it is a matter upon which I have exercised my own judgment. It seems to me to be the word ' other,' and that it has been struck out at some time. If it did stand, as I think it did, 'other estates,' it would be consistent with what Miss Sug- den says was the disposition in the will under this clause: 'I give to the trustees of my said will three annuities of £50 each upon trust as to every of the same for the use of my said granddaughter, and I hereby charge the same on ray Childerley Hall and other estates firstly hereinbefore devised.' Now, we know that this was put down by Miss Sugden without consulting this document, and without having refreshed her memory. That word, if I am right in supjiosing it to have been ' other,' occurring there, would be a corroboration of her statement as to the estate upon which those annuities were charged. In the corner of that document is a note showing that the late lord had made an estimate of what his personalty would be, as to which many observations have been addressed to me. The time when this was added to document 'J' has been stated by Miss Sugden to have been later than the drawing of the will, and it appears to me there is internal evidence of its being so, or at all events that there has been some addition made since. I find, ' Edward, £720.' I think it has become clear that that legacy was not given, as Miss Sugden sup- posed, by the will itself, but that it was given, as we now see, by one of the codicils; and I think it is equally clear that it was £700 and not £750. With regard to the £20, I think that is probably not an error, as has been supposed, on the part of Lord St. Leonards, but that it was a compu- tation by him of the proportionate payment of the allow- ance to the present Lord St. Leonards which he was in the habit of making, and reference to which is contained in the codicil as a thing to be provided for in the event of his death. I may say, in passing, so that I may not have to return to it, that I have not left unnoticed the argument 8 114 LOST WILLS. against the value of this instrument which has been based upon some omissions from it. It has been observed that it does not contain the annuity to the aged person as to which Miss Sugden has spoken. That is true; but it is to be ob- served that it was not charged upon any particular estate, and therefore, in the order of ideas which appears to have been present to Lord St. Leonards when he made these memoranda, it would not have its appropriate place, be- cause it is an enumeration of charges upon Kingswood, and, as I read it, ' other estates.' Neither could it take its place amongst the other legacies, because, as it was an annuity, its exact amount could not be computed; and further, the lady being of great age, it was probably not treated as a matter of very great importance. But, undoubtedly, no reason has been suggested for the omission of the legacy to the Misses Jemmett; that does not appear to have been put down by Lord St. Leonards upon this paper; but it may have occurred to his mind that what he had done for one set of grandchildren he would do for others, and he may have added it • to the will without adding it to the memorandum." ' Sec 81. Letters of testator and others — Alleged copy. In the case already so extensivel}' quoted from, letters of the testator, written before his decease, were admitted in evidence; they were about what he intended to put in his will. When it was first discovered that the will was lost, at the suggestion of her solicitor, Miss Sugden sat down and wrote out verbatim her father's will as she I'ecolleoted it. This she did without consulting any one, or refreshing her memory, not even by an examination of the memo- randar, with others, that we have referred to. All the state- ment was put in evidence. It was admissible as a copy of' the will; but seems to have been used to corroborate her oral testimony as to the contents of the wiU.^ 1 Sugden v. Lord St. Leonards, 45 L. J. (P. & D.) 49; 17 Moak, L. R. 1 P. D. 154 (1876); S. C. 34 453. L. T. (N. S.) 373; 24 W. R. 479; 2 Johnson v. Lyford, L. E, 1 P. PROOF OF CONTENTS. 115 Sec. 82. Admissions. — The statements of the heir claim- ing in opposition to the vVill, as to its contents, are admis- sible.' So the declarations of the opposite party who is claiming title to the property alleged to be devised are ad- missible,^ especially if in disparagement of title.' Sec. 83. Proltalbility of disposition of property.— The relationship of the testator to the alleged devisees or leg- atees, their ages and circumstances, his afifections, evi- denced by expressions and acts, for thegi, ma\^ be given in evidence, as tending to show the probability of the dispo- sition he made of his property, if that probability corre- sponds with the alleged contents of the will.* So, no doubt, his dislike of a legatee might be shown, to contradict his claim that the will was in his favor, as alleged. Indeed, in Sugden's Case, evidence of a change of affection for a leg- atee under a former will was shown to account for an alleged difference between it and the lost will, such leg- atee's share by the latter having been greatly reduced. So in this case the contents of the former will is constantly referred to in corroboration of the witness as to the con- tents of the latter, she having stated wherein they differed. Sec 84. Refreshing memory. — A witness may refresh his memory from a copy he knows to be a true one, but not from one he does not so know.' . But after two wit- nesses had testified to the contents of the will, a cop}^ at- tached to the petition was shown them, which they said was substantially correct. This copy was then put in evidence, and this was held not erroneous.* "Where the will was in the opposite party's hands, and on notice to produce it he & D. 546 (1868;, letters of the tes- (1880). In this case the heir was tator ; Conoly v. Gayle, 61 Ala. 116 denying the existence of the will. (1878). *• n ,1Q- 17 Moak. 453. 152 LOST WILLS. free from bias. Tha interest which he had, though slight, would have disqualified him from being a juror, and he himself regarded it as disqualifying him from acting as judge of probate in the settlement of the estate. Perhaps it would be too much to say that in no case can the con- tents of a lost will be established by the testimony of an interested witness, but if done at all the case should be a strong one in every other respect. On the whole I am of the opinion that the contents of this will are not proved with that degree of certainty which the law requires." [In contrast with this statement and its meaning,, see the opinions in Lord St. Leonards' Case, cited above. The con- trast is a, remarkable one.] ' 'In re Johnson's Will, 40 Conn. 587 (1874). CHAPTER IX. PROOF OF A PART ONLY. Sec. 110. Entire will must be proved. — It often hap- pens that an entire will cannot be proved — only a part of it; and the question at once arises if the part proved can be probated and enforced. Upon this question the cases are ver}' much at variance, and far from an agreement. Thus in a recent case it was said that, " When a testamentary instrument is lost or destroyed, it cannot be admitted to probate without clear and satisfactory proof of its whole contents." This language was limited to the whole of that part of the instrument devising property, and not to the revocatory clause, as is elsewhere shown.^ Other cases are to the same effect.^ In another Massachusetts case it was said : " Additional issues, affirming and denying what are alleged to be partial contents of the instrument in question, were properly refused, because the contents of the whole instrument must be proved before it can stand as a valid testamentary disposition." ' So in an early case in England it was said that in a proceeding in chancery to recover a legacy the plaintiff must prove " the contents in the very words;" and "must also prove the whole will, though the remainder of it does not at all belong to or regard his leg- acy." * Where a statute required two witnesses to testify to the contents before it could be established, it was held that they must testify to the substance of the whole will.^ 1 Wallis V. Wallis, 114 Mass. 510 » Newell v. Homer, 120 Mass. 277 (1874). (1876). 2 Sheridan v. Houghton, 6 Abb. ^ Tucker v. Phipps, 3 Atk. 359 N. C. 234 (1879) ; Vining v. Hall, 40 (1746). Miss. 83 (1866). &McNaUy y. Brown, 5 Redf. 372 (1882)i 154 LOST WILLS. In another case it was said that enough of the will must be proved as to admit of a legal construction; ^ and following somewhat in this line, it was said that the court must have before it substantially the testamentary intentions of the testator.^ ■ Sec. 111. Same, continued — Part sufficient. — The rulo laid down by the cases cited in the previous section has not been adopted by the majority of the courts, and even it has been slightly shaken by dicta in some of those identi- cal cases, as appears in the next section. In a very early case the person claiming under a will prevailed, although lie was able to prove only a part of it.^ So in this countr}^ there are plenty of authorities to the effect that if a part of the will — part of the devising part — is clearly proved, such part maj' be probated and carried into effect.* In Sugden's Case it was urged that, as all the will had not been proved, so much as had been could not be probated. ,To this argu- ment Cockburn, C. J., put thip question : " Suppose a will to have been partly destro3'ed by lire or otherwise, is no effect to be given to that part which is left?" To this coun- sel said: "If a material portion had been destroyed, the effect of which could not be ascertained by, other evidence, the part which remained could not be admitted to probate. There is no case in which a portion of a will has been ad- mitted ; in every case of the kind the substance of the whole will has been proved." The Master of the Eolls, Jessel, then asked: "Is there any case in which a portion of a will has been offered for probate, and probate has been refused ? " The answer of counsel was: "In Montefiore v. Montefiore '^ 1 Butler V. Butler, 5 Harr. (Del.) Va. 113 (1886); Dickey v. Malechi, 178 (1877). 6 Mo. 177 (1839) ; S. C. 34 Am. Dec. 2 Woodward v. Goulstone, 11 130; Burge v. Hamilton, 73 Geo. A pp. Cas. 469(1886). ' 568 (1884); Chisholm v. Ben, 7 B. 'Lawrence v. Kete, Aleyn, 54 Mon. 408 (1847) ; Skeggs v. Horton, (1647). 83 Ala. 353 (1887); S. C. 3 So. Eep. 1 Graham v. O'Fallon, 4 Mo. 601 110. ' (1837); Jackson v. Jackson, 4 Mo. 53 Addams, 854. . 310 (1835) ; Dower v. Seeds, 38 W. PROOF OF A PAET ONLY. 135 probate was refused of an instrument which had been writ- ten to a certain extent by the testator, but not finished." To this the Master of the EoUs replied : "You could not tell what he intended to write before he had finished writing; '' and James, L. J., added : " The ratio decidendi was that the court was not satisfied that there was evidence' that the testator had come to a final resolution." ' Sec. 112. Same, continned — Legacies unknown — Essential and substantial dispositions necessary. — In Sugden's Case a few legacies and several small remainders were not proved, and it was admitted that such was the case. In passing upon the objection raised to the probate of the will for this reason, Chief Justice Coekburn said : " As regards the only remaining question, namely, whether, assuming that we have not before us all the contents of the lost will, probate should be allowed of that which we have so long as we are satisfied that we have the substantial parts of the will made out, I cannot bring myself to enter- tain a doubt. If part of a will were accidentally burnt, or if a portion of it were torn out designedly by a wrong- doer, it would nevertheless, in my opinion, be the duty of a court of probate to give effect to the will of the testator as far as it could be ascertained. It is not because some who would otherwise have benefited by the will may thus fail to profit by the intended disposition of the testator that his will should be frustrated and fail of effect where his inten- tions remain clearly manifest. It may be that in this will there were matters which Miss Sugden fails to remember — indeed, she has herself said that there were other remain- ders that she does not recollect. So far, therefore, we have the contents of the v?ill before us in a defective form. It may also be that there are some few legacies — there can- not be many — which she does not recollect. They must be few, and they cannot have been of material consequence. » Sugden v. Lord St. Leonards, 45 L. J. P. & D. 49; 17 Moak, 453. L. R. 1 P. D. 154 (1876); S. C. 34 The case as reported in Moak's Re- L. T. (N. S.) 373; 34 W. R. 479; ports has been used. 156 LOST WILLS. But we have the substantial testamentary dispositions brought to our minds, and it would not be right to enable any wrong-doer, or any accident — not putting it so high as an intentional wrong — which might happen to a will, and which would prevent the court which had to deal with it from being perfect master of its contents, to prevent the will from being carried into effect so far as the dispositions of the testator had become known. I think there could not be a more mischievous consequence; and although it may be unfortunate that the will cannot be carried into execu- tion to the full extent of the testamentary dispositions of the testator, I think that of two evils or l^wo inconveniences it is far better, where the court can see its way to the essen- tially substantial dispositions made in a will, that it should give effect to them, although possibly some of the inten- tions of the testator may not be carried into effect." ' Sec. 113. Same, continued — Indorsing residuary leg- acy — Remainders. — The Master of the KoUs gave an elab- orate opinion on the point under discussion, and agreed with the chief justice. He stated it was admitted that there were some small legacies not proved, and that, as to the larger portion of the real estate, " there were some lim- itations over after the seven life estates, besides the estates limited to the issue of the tenants for life, the particulars of which she [Miss Sugden, the sole witness] does not re- member, although she does remember that other estates were left amongst the members of the family. Therefore we have, in the one case, legacies no doubt of comparatively small amount, trifling in themselves, the particulars of which we are unable to discover; in the other case we have limitations, remote indeed, and unlikely to come into effect, but still which are undoubtedly omitted from the document of which probate has been granted ; and the question which we have to decide is whether, under such circumstances as these, we can admit the will to probate at all? " The argument as to the personal estate was this : It 1 Sugden v. Lord St. Leopards, supra. , PROOF OF A PAET ONLY. 157 was said, if it is proved to your satisfaction that legacies are omitted, then, by granting probate of the will which disposes of the residue, you are giving a larger proportion of the personal estate to the residuary legatees than was intended by the testator, and in so granting probate you are not only not performing the intention but you are acting contrary to the intention of the testator. This • argument appears to me to be fallacious — ^ it turns on the use of • the word ' intention.' It seems to me that the testator may be said to have in this respect two intentioTis. He has a pri- mary intention that the legatee, whether general or specific, shall take the legacy; he has a secondary intention that, if by any reason whatsoever that legacy cannot take effect, then it is to go, not to his next of kin, but to his residuary legatees. It may Avell be that we are not ableto give effect to the primary intention, but we certainly are able to give effect to the secondary intention ; and I see no reason why we should not give effect to the secondary intention because the circumstances which have happened have made it im- possible to carry out the primary one to the extent of the legacies, the amount of which, and the names of the leg- atees of which, we do not know. This is by no means a new version of the law. We are familiar with the law as to personal estate as it existed before the Lost Wills Act, which has been extended by that act to devisees of real estate. I mean the rule that lapsed or void bequests fall into the residue. Now, the rule which was established by the judges before the legislature confirmed it by the Wills Act meant this : not that the testator whose whole prop- erty was, say, £11,000, and who gave £10,000 to his son and the residue to his nephew, not calculating that his son would die in his life-time, intended the £11,000 for the nephew, because everybody knows that a testator, in the absence of express provision to the contrary, contemplates the survival of his legatee; but it meant this: that he in- tended that particular nephew to take whatever was left of the personal estate, under whatever circumstances the res- 158 LOST WILLS. idue might be increased. In the case of lapsed bequests the intention was entirely defeated; in the case of void be- quests — say that the testator being possessed of £11,000, consisting wholly of mixed personalty, gives £10,000 to a charity and the residue to A. B., a stranger — it miglit well have been said he would not have preferred that stranger to his next of liin, had it not been'that he died in the belief that the bulk of his fortune would be devoted to charity; and to say that that which the charity cannot take shall go to augment the residue in favor of the residuary legatee, a stranger, is entirely contrary to the intention which might naturally be imputed to the testator. But the law is clear upon the subject, that, the primary intention not being capable of being carried out, because the charity cannot take, the residuary legatee takes the fund, although it was certainly not the priniary intention of the testator. The same principle was extended to the case where it was un- certain who the legatee was. The uncertainty might arise in various waj's: the handwriting of the testator (and this has happened in holograph wills) might be so bad that it was impossible to read the name of the legatee, and there was no other description by which to identify it. In that case the intention of the testator was certainly to benefit the legatee to the extent to which he was mentioned, yet, in the uncertainty as to his name, the sum given to hini fell into and augmented the residue. ' Or the uncertaintj'^ might arise from other causes : the legatee might be so imperfectly described that it was impossible to ascertain who he was; there might be two or more JDersons answering the descrip- tion and no evidence to distinguish bfetween them. In that case the law did not divide the legacy between these two or more persons, but again held that the legacy failed, and that the amount fell into the residue. "Now what difference is there in principle between the cases I have mentioned and the cases which have been al- luded to by the lord chief justice ? Take the case of a candle falling on a will and obliterating the name of the legatee ; PEOOF OF A PAET ONLY. 159 why should there be more difficulty in the court granting probate with the name omitted by reason of a candle, or a chemical liquid, having fallen upon it after the death of the testator, than by reason of the illegibilit}^ of his handwrit- ing, or of the uncertainty from the description of the will who the legatee was? There is no difference as to the in- tention; in all the cases there is a primary intention which is defeated, and a secondary intention to which effect is given. It appears to me there is no difference at all in prin- ciple. But is there anj' difference where the loss of legacies arises, not from actual obliteration upon the face of the will itself, but from obliteration from the tablets of the memory, so to speak, of the witnesses whose testimony is admitted as secondary evidence of the contents of the will? It seems to me that in principle it can make no difference whatever; and therefore there is no objection upon this ground in granting probate as regards the personal estate. Lastly, it appears to me that there are numerous decisions in the old ecclesiastical courts,^ which would be followed in the present court of probate, confirming this view. I mean those cases, many of which are reported, in which probate has been granted of a will, although it was proved that one or more codicils had existed also. In other words, probate has been granted of part of the whole testamentary instru- ra.ent, because the vcill and codicils together make the tes- tamentary instrument; and it does not matter for this pur- pose whether it is a portion of the will or a portion of the codicil which is lost. I may mention that there are also, decisions by which probate has been granted of a codicil or codicils, although the will itself was lost. Therefore, these decisions show that the mere fact of its being known that a portion of the testamentary instrument is wanting is not 1 It may be observed here that it country. Apperson v. Cottrell, 3 has been said of the report of the Port. 51 (1836) ; 8. C. 29 Am. Dec. cases of those courts that they are 839, 342 ; Betts v, Jackson, 6 Wend, excellent authorities, although not 173. binding on the courts in this ICO ' LOST WILLS. sufficient to prevent the court from granting probate of that which is left, it being satisfied that what is left is substan- tially correct as far as it goes. I think this disposes of the argument as to intention as regards the personal estate. "As regards the real estate, the matter stands upon a somewhat different footing. As to that we have, assuming that the evidence is to be relied upon, limitations of the real estate,- which are perfect so far as they go. As regards what have been called the principal estates, which are, in a sense, attached to the peerage, all Miss Sugden says is that these were limitations after those she has mentioned amongst the testator's family ; but as there were seven life estates, followed by limitations in tail, it seemed so absurd to think of the ultimate remainders that she says, ' I never thought much about it.' So what is missing is something which, if it existed and could be proved, would damage the heir at law to the extent to which these subsequent limita- tions could take effect; but the omitting them from the pro- bate cannot, as I have said before, injure him, but must benefit him. It does not seem to me, therefore, that he can have any ground of complaint at there not being any resid- uary devisees as regards those estates." ' In a very early case it was held sufficient for the pur- poses of the defense in an action of ejectment to prove that part of the will giving a life estate in tbe real estate in controversy, although it could not be shown to whom the remainder went.- In a quite recent case a legacy of $500 was shown, but the name of the legatee was not. The ver- dict of the jury made no reference to it, but contained a finding of a general residuary devise. The will as found was established, but the query was raised where this par- ticular legacy should go.' So in another American case it was held that the will is valid only as to those devises proved, and may be so established.* •Sugden v. Lord St. Leonards, ^Skeggs t. Horton, 83 Ala. 35-3 ^upra. (1887); S. C. 3 So. Rep. 110. 2 Lawrence V. Kete, Aleyn, 54 * Steele v. Price, 6 B. Mon. 58 '^^Vi). (1844). In this case a question of PROOF OF A PART ONLY. 161 Seg. 114. Eule modified — Revocatory clause proyed. — While in Massachusetts it is held that the whole will must be proved, an inclination, or intimation rather, that the rule would be modified under peculiar circumstances is manifest from the language of the court. Thus: "It is not such a will as may be proved in part and disproved in part. The testator undertook to make a distribution of his estate in certain, shares between his wife and children; and unless the whole can be proved, his intention will not be effectu ated, and therefore no part of the will can be established." ' This question of the testator's intention is very well dis- posed of in Sugden's Case.^ But the court has not adhered to the rule thus laid down in this quotation, of adhering to the testatori's intfention. Where only the revocatory clause was proved, it was used to prevent the probate of an ear- lier will. " If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is neverthe- less a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will, in accordance with the practice es- tablished in the English ecclesiastical courts before the Declaration of Independence, and adopted by the courts exercising similar jurisdiction in New York and New Jer- sey." ^ So in Mississippi, where the whole will must be proved to have it probated or established, it was held suffi- cient to prove the revocatory clause of a later will to pre- vent the probate of the earlier one.* practice arose. An appeal had ' Davis v. Sigourney, 8 Met. 487 been taken to the circuit court, and (1844). that court established more of the ^ Sec. 113. will than the county court had. , ' Wallis v. Wallis, 114 Mass. 510 This was held not to be error, the (1874). evidence sustaining the finding. * Vining v. Hall, 40 Miss. 83 (1866). 11 CHAPTEE X. LOST SUBSEQUENT WILL - EECALLING PROBATE OF FOR- MER WILL. Sec. 115. Defeating probate of prior by showing sub- sequent but lost will. — It is a good defeinse to a petition to probate a will that there was executed a subsequent will which revoked it, even though the latter is lost; and no special statute is necessary to authorize a probate court to receive such evidence; ' nor do6s the statute requiring the testimony of two witnesses to its contents apply.' Such sub- sequent will may be proved by parol evidence ; ' arid no objec- tion lies that the will is the best evidence, for it is lost.* But merely proving the fact of the execution of the subsequent will is not sufficient, for there is no presumption that it re- voked the former; the contents of the will must be shown, and these must contain revocatory' words, or show such an inconsistency between the two wills that botli cannot stand.* Thus, in a special verdict it was found that in lliS the tes- tator made a will, and it was set out ; that in 1Y56 he made another, duly attested, making a different disposition of the property from the one made in 1748, but in what particulars was unknown to the jurors. The jurors said that they did not find that he canceled or destroyed the will of 1756; but what became of it they did not know. The court de- cided that although the will of 1756 contained a different 1 Sec. 9. 131 ; Nelson v. McGiffort, 3 Barb. 2 Sees. 9, 105. Ch. 158 (1848); S. C. 49 Am. Dec. 3Legare v. Ashe, 1 Bay (S. C), 170; Hutchins v. Bassett, Comb. 464 (1795); Goods of Brown, 1 Sw. 90; S. C. sub nom. Hitching v. Bas- & Tr. 33 (1858); S. C. 4 Jur. (N. S.) set, 3 Mod. 303; 3 Salk. 593; Hun- 244; 37 L. J. (P. D.) 41. gerford v. Nosworthy, Shower, P. 4 Hope's Will, 48 Mich. 518(1882). C. 146. 5 Cutto V. Gilbert, 9 Moo. P. C. EECALLING PEOBATE OF FOEMEE WILL. 163 disposition from the one of 1Y48, yet as the particulars of that difference were unknown, it would not hold, from these facts, that the latter revoked the former. This was the de- cision in the common pleas.^ On appeal to the king's bench this decision was reversed, the court holding that the lat- ter w^U revoked the former; Justice Wares saying, "the second will is not found to be canceled or destroyed; there- fore it must be considered as in being." The chief justice, De Grey, said : " "When a man hath once declared prop- erly what his mind is as to the disposition of his lands, upon doing that he is presumed' to continue of the same mind till his death, unless the contrary appears." '^ But on appeal the decision of the king's bench was reversed by the house of lords, and that of the common pleas affirmed.^ In a Pennsylvania. case the report of this English case as it was decided in the king's bench is followed.* Sec. 116. Revoking probate of former will. — When a subsequent will is discovered or proved, which amounts to a revocation of a former will already probated, a question of the revocation of the probate of the former will arises. In speaking on this subject the supreme court of Ehode Island said: > , " Our statutes nowhere recognize in express terms the power of our courts to revoke a probate once granted by them, leaving that just and necessary power to be implied from their general power to ' take the probate of wills, and grant administration on the estates of deceased persons.' ]^o one can suppose, however, that such power of revocation does not exist in them ; else, if probate of a will be granted, and the time of appeal be passed, inasmuch as their juris- diction is exclusive, there would be no mode in which a later will of the testator, subsequently found, could be proved, without the inconvenience of leaving out, at the 1 Harwood v. Goodwright, 3 * Jones v. Murphy, 8 W. & S. 275 Wils. 497 ; 2 H. BI. 937. (1844). See Betts v. Jackson, 6 2 Cowper, 88 (1774). Wend. 173 (1830). 164 LOST WILLS. same time, conflicting authorities, issuing from 'the same source, and with regard to the settlement of the same es- tate. Now it would seem to be quite congruous with the statute mode of conferring this power of revoking the old probate, to wit, as incidental to the power of taking pro- bate of the later will when discovered, for the court to ex- ercise this power of revocation, as incidental to the new grant of probate, rather than to make it necessarily the subject of preliminary and separate action. Such a prac- tice would save the delay and expense of double proceed- ings, and enable the court to revoke or modify the old probate, as the old will utterly conflicted or was capable of partially standing with the new. Notice of the petition for the probate, or for filing and recording of the new will, must necessarily be given to the parties interested under the old one ; and the prayer of such a petition incidentally involves the revocation of the probate of the will of prior date, so far as such will conflicts with the provisions of the will of later date. We can perceive no danger of confusion or injustice in allowing this double, but dependent, duty to be performed by the court upon a mere petition for the probate of the later will; and its simplicity arid directness commend it, as a matter of practice, in other respects, to oiir favor. Without doubt, the probate of the first will must stand as conclusive upon the courts of common law and chancery until revoked by proper proceedings in the appropriate court; and the practice in the English ecclesi- astical courts probably is not, in general, to grant probate of the later will until service of a citation calling upon the executor of the prior will to bring it in for revocation. Yet this rule of practice is amenable to circumstances; and in the late case of Wilkinson v. Robinson,' probate of the later will was taken by the prerogative court, notwithstand- ing a decree ordering the executrix of the former one to bring it in, in order that the probate of it might be revoked and that probate of the second will might be granted, 1 14 Jur. 73. EECALLING PEOBATE OF FOE'MEE WILL. 165 could not be served upon her, — she residing in France, and avoiding the service of the decree. . . . Without decid- ing, therefore, that such a power of revocation may not be exercised upon direct application to the court for that pur- pose, we have come to the conclusion that it may be exer- cised upon a mere application to take probate of, or allow to be filed and recorded a copy of, the later will, as inci- dental thereto." ' A will of 1818 was probated in 1870. In 1845 another paper was presented, dated 1828, to the same court. It veas held that the court had the power, whether it revoked the former or not, to probate the latter.'^ That the court has the power to recall or revoke the probate of a former will is clearly established by the English cases.' The pro- bate cannot be attacked for fraud.* The letters of admin- istration will not be revoked unless the will is found or proved, and not on a promise to bring proceedings to estab- lish it.' The grant of letters of administration does not estop any one from bringing an action to establish the will,^ unless the propounder of the will was in some way, in case of the probate of a former will, connected with the probate of such former will as to render it inequitable to allow him to insist on the establishment of such later will.' If the distributees of an estate do not claim as legatees under the will they are not estopped ; nor can the executor de son tort claim they are for them.^ Nor is an administrator who 1 Bowen v. Johnson, 5 R. I. 113 L. E. 9 P. D. 70; S. C. 53 L. J. (P.) (1858), citing Campbell v. Logan, 3 58 ; Pinney v. Hunt, 6 Ch. Div, 98. Bradf . 90, and Schultz v. Schultz, < Hall v. Gilbert, 31 Wis. 691 10 Gratt. 358, to same effect. (1873) ; Holden v. Meadows, 31 Wis. 2 Schultz V. Schultz, 10 Gratt. 284 (1873) ; Gaines v. Chew, 3 How. 358 (1853); Reed's Will, 2 B. Mon. 619 (1860). ' 80 5 Holland v. Ferris, 3 Bradf. 334 8 Bradford v. Young, 26 Ch. Div. (1853). 656 (1885); S. C. 54 L. J. Ch. 96; 50 SBulkley v. Redmond, 2 Bradf. L. T. 707: 33 W. R. 901; Priest- 381(1853). man v. Thomas. L. R. 9 P. D. 310 "Burns v. Travis, 117 Ind. 44; 18 (1885); S. C. 53 L. J. (P.) 109; 51 N. E. Rep. 45 (1888). L T 843; 33 W. R. 843, afflrming » See Clarke v. Goodrum, 61 Miss. 731 (1884), 166 _ LOST WILLS. has procured a fraudulent decree rejecting a will estopped from afterwards having it overruled and the will probated.' Sec. 116a. Effect of setting aside probate without re- voking former will. — " When a court recalls the probate of a will, substituting the probate of another will by the same testator made posterior to the first, the former be- comes inoperative, and the second is that under which the estate is to be administered, without any formal declaration by the court that the first was annulled, and it makes no difference that a part of the estate has been administered under the first probate. The unad ministered must be done under the second." The court cannot, however, order the will destroyed, nor revoke it, although it may declare that it has been revoked.^ Where the court refused to probate a will, and an appeal was taken, pending which probate was granted, it was held that the letters of administration on reversal must be revoked, and letters granted to the ex- ecutors named in the will.' Sec. 117. Codicil found after probate of will. — If a codicil is found after the will of which it is a part is pro- bated, the codicil may be admitted to probate.^ Where a will had been admitted to probate, and after the time for appealing from the decree had passed, it was held that it might admit to probate a codicil of the same will, written upon the back of the same leaf upon which the will was writ- ten, if the codicil escaped attention and was not passed upon at the time of the probate of the will.* A statute authorizing a court to admit to probate a lost will applies to a lost codi- 1 Brookie v. Portwood, 84 Ky. as legatees under the *ill. Hunt 259(1886). V. Hamilton, 9 Dana, 90 (1839). '^ Gaines v. Hennen, 34 How. 553 < Clark v. Wright, 3 Pick. 67 (1860). See Schultz v. Schultz, 10 (1825); Schultz v. Schultz, lOGratt. Gratt. 358 (1853). 358 (1853) ; Davis v. Davis, 3 Ad- 'Patton's Appeal, 31 Pa. St. 465 dams, 333(1844). (1858). Where a will was found » Waters v. Stickney, 12 Allen, 1 after administration gi-anted, the (1866). See, also, Camphell v. Lo- administrator and his sureties gan, 3 Bradf. 90 (1853). were held liable to those entitled EECALLING PEOBATE OF FOEMEE WILL. 167 cil. Where a testator revoked the eleventh, twelfth and thirteenth devises of his will by a codicil, and then detached and destroyed them, it was held that a court of chancery had power to restore them, although the will, without these clauses, and the codicil had been probated. The probate of the codicil did not bind the plaintiff, who had an interest only by the destroyed clauses.^ 1 Hook V. Pratt, 8 Hun, 103 (1876). CHAPTEE XL COMPETENCY OF WITNESSES. Sec. 118. Proof of search. — Even though a witness be interested in the establishment or pfobate of the lost will as legatee or the like, he is competent to testify to the loss and search for the lost instrument. In this all the cases agree.' Sec. 119. Proof of contents. — Whether or not an inter- ested witness may testify to the execution or contents of the lost will is a matter of some controversy among the courts. In Missouri it was held in an early case that he was competent, on a petition to probate. The court said : " Any other construction of the law would lead to intol- erable consequences. A party seeking to establish a lost will is bound to cite the heirs at law. The relations of a testator are most likely to be the persons most conversant with his intentions, and around and about his person and house during his last illness. If the testimony of all these persons must be excluded on the ground of their being par- ties, and they are necessarily made parties in such proceed- ings, it must become exceedingly difficult in most cases, and in many cases absolutely impracticable, to establish most of the facts necessary to authorize the probate of a lost will. It places it in the power of the persons most likely to be interested in suppressing the will to shut out all investiga- tion and shield themselves under a rule of law from all re- sponsibility. Such a state of things could never have been contemplated either by our statute law regulating proceed- ings to establish wills, or sanctioned by the common-law iBetts V. Jackson, 6 Wend. 173 483 (1885); S. C. 15 Am. Dec. 395; (1830); Jackson v. Betts, 9 Cow. Apperson v. Cottrell, 3Port. (Ala.) 208 (1838); Dan v. Brown, 4 Cow. 51 (1836); S. C. 39 Am. Dec. 339. COMPETENCY OF WITNESSES. 169 rules of evidence." ^ So it has been held the same way in a number of states.^ Of a legatee it was said that he is neither a party to the probate proceedings, nor one " in whose immediate and individual behalf " the proceedings are wholly or in part had, within the meaning of the stat- ute.' A statute excluded as a witness either party " against the other to testify to any transaction with or stattement by any deceased person whose estate is interested in the result of the suit ; " and this was held not to exclude a legatee or devisee. " This exception does not disqualify the witness from testifj'ing about other matters than such statements or declarations." It will thus be perceived that the witness Avas not allowed to testify concerning the declarations or stateinents of the testator, his testimony being limited to those facts he knew outside of these.* Of course interest goes to the credibility of the witness.' Sec. 120. Witness not competent. — An early Missouri case took a middle course. An heir was a witness, and he was also a legatee under the last will. It was said that his competency depended upon the fact whether he took more by the will or by intestacy. It appeared that in case of intestacy he would get $285,000; under the will $50,000 with a remote contingency not of much value. He was held to be a competent witness for the will.^ A statute provided that where a person is dead, and the action is brought against his executors, administrators, heirs at law, next of kin or assignee when they have derived their rights I 1 Dickey v. Malechi, 6 Mo. 177 ^Conoly v. Gayle, 61 "Ala. 116 (1839); S. C. 34 Am. Dec. 130. (1878). 2 Kidder's Estate, 66 Cal. 487 5 Wyckoflf v. WyckofE, 1 C. E. (1885); S. C. 6 Pac. Rep. 336; Gr. 401 (1868),; Sugden v. Lord St. Tucker v. Whitehead, 59 Miss. 594 Leonards, 1 P. D. 154 (1876); S. C. (1883) (legatee) ; Wyckofl v. Wyck- 45 L. J. (P. & D.) 49; 34 W. R. off, 1 C. E. Gr. 401 (1863) (legatee); 479; 34 L. T. (N. S.) 373; 17Moak, Mercer v. Mackin, 14 Bush, 434 453. (1879) (devisee); S. C. 1 Am. Prob. « Graham v. O'Fallon, 4 Mo. 601 Gas. 399. (1837). It will be observed that 3 Lawyer v. Smith, 8 Mich. 411 this is an earlier case than Dickey (1860); S. C, 77 Am. Dec. 460. v. Malechi, supra. 170 LOST WILLS. or cause of action immediately'' from such deceased person, then the opposite party cannot be examined as a witness in his own behalf ii\ respect to any transaction or communi- cation he had personally with the deceased. In a suit to set up a lost will by the devisee, the latter was held incom- petent to testify against the executor and next of kin.' In an action in ejectment it was sought to prove the contents of the grandfather's will. It appeared that this ancestor died, leaving his son, " father of the lessor of the plaintiif, his only son and heir at law; " and the offer was to prove the destruction and contents of this will, by the wife of the lion of the lessor, which -would have put the land in con- troversy in a grandson, " the lessor of the plaintiff." The question was " whether the wife of the plaintiff's father is a competent witness to prove that her husband destroyed his father's will, although she had released her dower in the premises to the defendant's father;" which release was a fact shown by the record. -It was held that "she was a competent witness to prove the destruction of the said will, and that her credibility was left to the jury." ^ 1 Timon v. Clafify, 45 Barb. 438 " This is the whole of the opinion. (1865). " Wilmot v. Talbot, 3 H. & McH. 2 (1793); S. C. 1 Am. Dec. 374. CHAPTER XII. TRIAL — ISSUE — VERDICT — DECREE — COSTS — INNOCENT PURCHASERS. Sec. 121. Trial.— In matters of probate the court usu- all}'^ hears the evidence and determines the controversy. It has already been stated that some courts deny the power of a probate court to set up and probate a lost or destroyed will unless especially empowered by statute; but that there is a decided inclination to hold that if it possess all the powers of a court of chancery to examine into the contro- versy, to call a jury and frame an issue devisavit velnon, such court has full power to try the matter and probate the will.» Sec. 122. Jury. — The right to a trial by jury frequently depends upon a statute; for if one expressly gives it, a jury may be demanded as of course, but if not demanded it is waived.^ A court of chancery may of its own motion frame an issue and submit it to the jury; and to this no exception can be successfully taken.' Sec; 123. The issue. — In all such cases the issue is .framed by the court, and is the issue devisavit vel 7ion — '' did he devise or not." * The practice in this respect does not differ from that when the probate of a will produced is con- tested. In a Tennessee case the issue was as follows: " The complainants come and aver that James M. Swaney left at the time of his death a will, in which he gave, after the iSecs. 5, 11. 4 Dower v. Seeds, 38 W. Va.ai2 2 Jaques v. Horton, 76 Ala. 238 (1886); S. C. 57 Am. Rep. 646. The (1884) ; Dower v. Seeds, 28 W. Va. above case contains a long discus- 112 (1886) ; S. C. 57 Am. Rep. 646. sion of the practice in framing anil sidley V. Bowen, 11 Wend. 227 submitting such an issue. Dawson (1833). V. Smith, 3 Houst. (Del.) 335 (1866). 1T2 LOST WILLS. payment of his debts, all of his estate, both real and per- sonal, of which he might be possessed, to Eliza Morris for and during her natural life, and at her death to her chil- dren by the said J. M. Swaney, to be equally divided be- tween them, and that said will has been lost or destroyed or suppressed, either by accident or fraud, and they ask that the same be inquired of by a jury of the country.'" In another case an issue devisavit vel non was framed to ascer- tain whether the testator, on the 3d of May, 1825, was of sound mind, memory and understanding, and competent to devise and bequeath his real and personal estate; also whether he was competent to make a will on the 3d day of April, 1825, and did on that day make a will disposing of his property in the manner alleged in the bill; and also whether he did, at any time after the execution of the last- mentioned paper, revoke the same.^ Where an action was brought to probate a will of "Wm. H. Bordman which, with three codicils, it was alleged, was lost, the court framed the following issues: " 1. Whereas the said appellant afBrms and said respond- ents deny that the said Bordman deceased leaving a will duly executed, of which the paper annexed to or embodied in the appellant's petition is a true copy. " 2. Whereas the said appellant affirms and said respond- ents deny that said will was concealed,- suppressed or de- stro3'ed by the respondents, or by some of the heirs at law of said deceased, or by Frederic O. Prince, or some one else acting in their behalf. " 3. And whereas said appellant affirms and said respond-" ents deny that said Bordman deceased" leaving a codicil duly executed by him, of which the paper marked B, an- nexed to said petition, is a true copy. i iMoi-ris V. Swaney, 7 Heisk. 591 cuted the will is not required unless (1873). proof of insanity is first introduced 2Idley V. Bowen, 11 Wend. 227 by those opposing the probate or (1833). Usually proof of the sanity establishment of the will. Ander- of the testator at the time he exe- son v, Irwin, 101 111. 411 (1883). ISSUE.. 173 " 4. And whereas the said appellant afBrms and said re- spondents deny that said codicil was concealed, suppressed or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf. " 5. And whereas said appellant affirms and said respond- ents deny that said Bordman deceased leaving a codicil duly executed by him, of which the paper marked C, an- nexed to or embodied in the appellant's petition, is a true copy. " 6. And whereas the said appellant affirms and said re- spondents deny that the said codicil was concealed, sup- pressed or destroyed by the respondents, or by some of the heirs at law of said deceased, or by Frederic O. Prince, or by some one else acting in their behalf. " 7. And whereas the said appellant affirms and said re- spondents deny that the said Bordman deceased leaving a codicil duly executed by him, of which the paper marked D, annexed to or embodied in the appellant's petition, is a true copy. " 8. And whereas the said appellant afBrms and said re- spondents deny that the said codicil was concealed, sup- pressed or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf. "And whereas the said respondents affirm and, the said appellant denies that if the said Bordman did decease leav- ing any such codicil as is alleged in the appellant's petition, he, at the time of executing the same, was not of sound mind: " Now, therefore, it is ordered that a jury be impaneled to try said issues." Other issues were requested by the appellant, praying for a finding as to whether certain bequests, among others not specified, were contained in the will, but these were refused, "because the contents of the whole instrument 174 LOST WILLS. must be proved before it can stand as a valid testamentary disposition." ' Sec. 124. Two wills — Double issue — Interest. — Cases of some diflBculty occasionally arise in the probate or estab- lishment of a lost or destroyed will. If the lost will is the last one in point of time,' where a previous one has already been probated, little or no difBculty will arise by reason of such fact; for if the last one contains a clause revoking the for- mer, or is such an one as to work its revocation by reason of itp terms being inconsistent therewith, all the propounder has to do is to succeed in getting the lost and last will pro- bated, and thereb}' the former one will be annulled.^ So if it is only a partial revocation, his aim must necessarily be the same. But suppose the will sought to be established or probated was the earlier in point of time and the last will revoked it ; then a double issue may be raised. It may be averred that the last will was procured by fraud, duress or undue' influence, or the testator at the time of its execu- tion was insane or incapable of making a will; and that the same pernicious causes brought about the destruction of the former and lost will. In such a case it is absolutely necessary to set aside the probate of the more recent will. If the contestant is an heir, he has interest enough to enable him to bring an' action solely for the purpose of setting aside the probate (when probate has been had) of the last will'or to enable him to resist its probate; and if success- ful, he may then bring an action, if a legatee or devisee thereunder, to probate or establish the lost will. But an- other difficulty may arise. Suppose he is not an heir, but only a legatee or devisee under the former but lost will, and that will is not admissible in evidence for any purpose until probated. He must necessarilj' aver and prove his interest, and he can only do so by showing the contents of the lost will. If he simply brings an action to probate the 1 Newell V. Homer, 120 Mass. 277 2 See. 116a. (1876). A statute authorized the framing of an issue in such a case. ISSUE. 175" lost will, the answer would be that there is a later will which revokes the lost one; and this later will may or may not be probated; if probated, the propounder of the lost will may find himself, in that case, concluded by the probate, because of the rule that he cannot attack it collaterally; bilt if he is not thus concluded, he may reply that the probated will was procured by fraud, undue influence, or the .testator was insane at the time of its execution. In that event a double issue is raised : one to prove and probate the lost will, and the other to set aside the probate of the later, or that it, if not probated, was procured by fraud, or the like. But the petitioner may see fit to pursue another course. He may file the usual petition to' prove the lost will and therein attack the probated will on the grounds of fraud and the like, and ask that the probate be set aside. In this event he raises a double issue also;. and is in perhaps as good a position as he would be to pursue the other course. ]!fow, in either of these events, can the issues raised be disposed of by a jury; for it would seem necessary that they be disposed of at the same trial, so interlaced and in- volved are they with each other. Several cases hold that both questions may be disposed of in the one action.' In New Tork a case of this kind arose in which it was said: " That part of the bill which seeks to set aside the last will might still be demurred to if the question as to the validity of that will was not directly connected with the establish- ment of the first. But if that will is valid it is a revocation of the first, and the complainants cannot succeed in their suit to establish the first will, even if they show that it was improperly destroyed without. the knowledge or consent of the testator. The part of this case, therefore, over which this court has an unquestionable jurisdiction, necessarily draws to it the decision of the question as to the validity of the last will. The defendant, however, in her answer, may insist that the first will was destroyed by the testator 1 Vance v. Upson, 64 Tex. 266 (1884) T Scoggins v. Turner, 98 N. C. 135 a887h S. C. 3 So. Een. 719. 176 LOST WILLS. or with his consent; and may then object to the jurisdic- tion of the court to decide upon the question of the validity of the last will as between her and the heir at law. And in that case, if the complainants do not succeed in establish- ing the fact that the first will was illegally destroyed, their bill ipust be dismissed without awarding an issue to de- termine the validity of the last will as between Mrs. Idley and her co-defendant; leaving the heir of the decedent to her remedy at law by action of ejectment. This could not be done as the cause stood at the original hearjng before the vice-chancellor.' The two children who were then sup- posed to be heirs at law were complainants, and no objec- tion was made in the answer of the defendant to the juris- diction of the court to determine the question as to the validity of the last will, if the allegation as to the fraudu- lent destruction of the -first was not sustained. It was, therefore, a matter of course to award an issue devisavit vel non, to determine the question as to the last will, even if the complainants had not succeeded in proving the fraudu- lent destruction of the first. For if the first was destroyed by the testator or by his direction, yet if the last was ille- gal the plaintiffs would be entitled to the property under their prayer for general relief. If this amendment is al- lowed and the infant heir of the testator is made a defend- ant, she will therefore have a right to insist that Mrs. Idley is a necessary party to establish either will ; as the infant may contest the validity of both." ^ In "West Virginia a somewhat different course was pur- sued, it being said that the plaintiff could show by afiBdavit his interest in the controversy. A statute of that state pro- vided that " After a sentence or order (admitting to probate or refusing to admit to probate a paper as a will), a person interested, who was not a party to the proceedings, may, 1 See the case of Bowen v. Idley, ^ Bowen v. Idley, 6 Paige, 46 4 Edw. Oh. 148(1851). Same report (1831). Seethe same case on ap- in statement of case to Idley v. peal, Idley v. Bowen, 11 Wend. 237 Bowen, 11 Wend. 237 (1833). (1833). ISSUE. 177 within five years, proceed bj'^ bill in equity to impeach or establish the will ; on which bill, if required by either party, a trial by jury shall be ordered to ascertain, whether any, and if any, how much, of what was offered for probate be the will of the decedent. If no such bill be filed within that time the sentence or order shall be, forever binding." ' In passing upon a case of the kind under consideration, the supreme court of that state said : " The court in chancery directed an issue to be tried ' to ascertain whether any, and if any, how much, of the paper probated in the county court of Mason county, "West Vir- ginia, on the 24th day of January, 1876, was the will of John J. "Weaver, deceased.' This is the issue which the statute required to be tried by the jury. And it can, as we have seen, neither be enlarged nor restricted by the plead- ings in this case. It would have been an error in the cir- cuit court to have directed the trial of such an issue, as the appellants now in this court insist it should have directed; that is, ' how much, if any, of the two instruments named in the bill as executed by John J. "Weaver was and is' his will.' As we have seen, the court had no authority in that case to do more than to have determined by a jury under its. supervision the single question whether the paper which had been probated was or was not the will of the deceased, and then to render its decision accordingly. "But it is claimed that it had no authority to direct such an issije till the plaintiffs had proved theniselves interested in the question by proving the will of 1868, under which they claimed. This is a strange position. If they had been required to prove this, it would obviously have been the duty of the court, at the instance of any of the parties, to have proved it in the manner which the law requires; that is, by a verdict of a jury that the will of J. J. "Weaver, of 1868, was made when he was of disposing mind and mem- ory, and was executed in the manner required by law. And thus instead of only one question to be decided by the 1 Code of W. Va. p. 483. 178 LOST WILLS. jury under the direction of the court, as required by the statute, another question of like character and difficulty would have to be decided in like manner by a jury and the court. This would be, as we have seen,, an obvious viola- tion of the statute. " But it may be asked, can any one, by setting up a pre- tended claim in the bill, utterly unfounded, contest in this way any will, though the plaintiffs have no real interest in the question whether it be or be not the will of the de- cedent? "I answerthat they cannot; for at the instance of the de- fendants the court would issue a rule against the plaintiffs to show cause why their bill should not be dismissed because they were abusing the process of the court in a matter in which thej'^ had no hona fide claim of or to any interest. And if on the trial of such a rule by the court without any ihtervention of a jury it appears that the plaintiffs had no claim or pretense of claim to any interest in the subject of controvers}' named in the bill, then their suit would be dis- missed. "But the inc|uiry in this case on such a rule would not have been whether John J. "Weaver was competent in 1868 to make a will and did make such a will as stated in the bill, but simply whether the plaintiff set up a hona fide claim that such a will had been made. On such a rul© in this case the affidavit of the widow of John J. Weaver to the facts stated in her answer would alone have been ample to prove that the claim of the plaintiffs to an interest in the question in controversy in the cause was obviously hona fide, and the rule would have been dismissed."* Seo. 125. Terdict or finding.^ The verdict of the jury is not binding upon the court,^ especially in a court of chan- cery, unless made so by statute.^ Tiae verdict or finding of 'Dower v. Church, 31 W. Va. (1833); Timon v. Claflfy, 45 Barb. 47-49(1883). 438(1865). 2Idley V. Bowen, 11 Wend. 337 3 Morris v. Swaney, 7 Heisk. 591 (1873). DECREE. 179 the court must necessarily contain the substance of the will set out.i This may be done by finding in favor of the plaintiffs and referring to the copy of the will, when it is set out, by saying that it is a substantial copy.^ Often the verdict partakes of the nature of a special verdict — "that James Cottrell did make a will, of which the instrument produced is in substance a copy ; and that he was of sound and disposing mind and memory at the time of making the same; and that it has not been revoked."'' In other in- stances ainswers to interrogatories have been treated as a special verdict.* Of course the finding or verdict must be broad enough to support the decree which rests upon it, and must, in connection with the pleadings and exhibits, con- tain all the necessary facts. Sec. 126. The decree. — The decree must be framed ac- cording to the issues raised and facts found. If the proceed- ing is in chancery, and the defendant is charged with the receipt of the property devised, which the plaintiff is entitled to under the will, the court may decree payment of the plaintiff's legacy to him according to the terms of the will as established.* Thus, where a person was intrusted by the testator with a will and note due by himself, it was held that by the concealment of the will and retention of the note after the testator's death he became an executor de son tort, and was liable to be proceeded against by the legatees under the concealed will; by accepting the cus- tody of the will he became trustee in an express trust as to it, and by dealing with the estate he became as to it a trustee by construction. It was so decreed." In ITew York, under the old practice, the decree in chancery establishing the will was sufficient to authorize the surrogate court to 1 Skeggs V. Horton, 83 Ala. 353 < Timon v. Claffy, 45 Barb. 438 (1887); S. C. 3 So. Rep. 110. (1865). 3 Morris v. Swaney, supra. See * Adams v. Adams, 33 Vt. 50 finding in Sugden case, § 137. (1849). 3 Apperson v. Cottrell, 3 Port. * Clarke v. Goodrum, 61 Miss. 731 (Ala.) 51 (1836); 8. C, 39 Am. Dec. (1884). •2.^9. 180 LOST WILLS. record the decree and issue letters of administration thereon.' It is a, very common practice, whesre the will is lost, to grant letters of administration until the will is found ; ^ and if its contents are established, until a more authentic copy can be brought into the probate court.' The decree should set forth the contents of the will, that it was duly executed by the testator, and by whom attested, as required by law, if known, and if not, by two lawful witnesses whose names are unknown ; that the testator was of sound mind and dis- posing memory. The decree should also contain a direc- tion that it, including the will so established by it, be re- corded in the proper will book, which should be done by recording a copy of the decree of the probate court or a copy of the decree in the chancery court.* The substance of the will, as shown by the evidence, must be incorporated in the decree, if probate be granted or it be established.* "Where the contents are proved by depositions, the usual practice is to order them recorded as evidence of the con- tents of the will.* Sec. 127. .Examples of decrees. — "And now, on the motion or petition of the said Jonathan Wright, the exec- utor, the jury having found that the said William Clough, the testator, did, after the execution of his said will, duly make and publish a codicil thereto, which said codicil was afterwards fraudulently torn off and destroyed; and the paper writing in the cause marked A having been pro- pounded as a true and exact copy of the said codicil, and probate and allowance prayed; and the court having pro- ceeded to take evidence to prove the same paper A to be a true copy of said codicil, and having been satisfied thereof: 1 Everitt v. Everitt, 41 Barb. 385 < Dower v. Seeds, 28 W. Va. 113 (1864). ■ (1886) ; .57 Am. Rep. 646. 2 Goods of Hilliard, 26 L. T. 238 5 McNally v. Brown, 5 Redf. 373 (1856). (1882). 3 McBeth V. MoBeth, 11 Ala. 596 6 Sinclair's Will, 5 Ohio St. 290 (1847); Coote's Prob. Prac. 123 (1855); Clark v. Wright, 3 Pick. 67 (17th Eng. ed.). (1825). See section 137 for the de- cree in this case. DECREE. 181 It is therefore ordered, adjudged and decreed that the said decree of the judge of probate, appealed from in this cause, allowing the said instrument as and for the will of the said William Clough, be and the same is hereby affirmed. And it is further ordered, adjudged and decreed that the said codicil, as written and expressed in the said paper marked A, be and the same is hereby received, approved and al- lowed as and for a codicil to the said will of the said Will- iam Clough, deceased ; and that an examined copy of this decree, together with the original will as proved and al- lowed by the judge of probate for the county of Suffolk, and the codicil proved and allowed as aforesaid in this court, be remitted to the said judge, that he may further proceed in the premises according to law." * In Sugden's Case the following entry, so far as applicable to the discussion here, was made : " This court doth order that the declaration filed in this cause be amended, and, the same having been amended at the sitting of the court, this court doth find that the Right Honorable Edward Burtenshaw, Lord St. Leon- ards, the deceased in this cause, made and duly executed his last will and testament, bearing date on or about the 13th of January, 1870, and that the contents thereof were in substance or to the effect set forth in the third paragraph of the declaration as amended ; and that the said deceased also made and duly executed eight codicils to the said will " (mentioning their dates), " the said wills and codicils having been propounded in this cause on behalf of the plaintiffs, the executors therein named, and that the said will and codicils were not, nor were either [any] of them, revoked at the death of the said deceased." The decree was as- fol- lows: "On the application on behalf of the plaintiffs for a decree, this court doth pronounce and decree for the force and validity of the last will and testament of the Right Honorable Edward Burtenshaw, Lord St. Leonards, the de- ceased in this cause, bearing date on or about the 13th of January, 1870, and for the contents thereof as in substance 1 Clark V. "Wright, 3 Pick. 67 (1835). 182 LOST WILLS. or in effect set forth in the third paragraph, as amended, of the declaration filed in the cause on behalf of the plaintiffs, and also for the force and validity of the eight codicils to the said wilL" ^ In Gaines' Appeal the decree was as fol- lows: "It is ordered, adjudged and decreed that the will of Daniel Clark, dated New Orleans, July 13, 1813, as set forth in plaintiff's petition, be recognized as his last will and testament, and the same is ordered to be received, recorded and executed as such; and it is further ordered that Fran- cois Dusuan De la Croix be confirmed as testamentary exec- utor of said last will and testament, and that letters testa- mentary issue to the said De la Croix, and that the costs of this proceeding be borne by the succession."* Seo. 128. Decree in probate in solemn form. — The pro- bate of a lost will is in solemn form. Thus, of such a pro- bate, it has been said: "The probate of a will in common form only requires the testimony of a single T^itness, and is without notice to any one. Probate in solemn form is with notice, and by all the witnesses in existence and within the jurisdiction of the court, or by proof of their signatures and that of the testator, if the witnesses be dead. To establish a lost will the law requires that a copy of the same, clearly proved to be such by the subscribing wit- nesses and other evidence, shall be produced before it is admitted to probate and recorded in lieu of the original. ' If the subscribing witnesses are all to be produced, as herein provided [by statute], then it follows that the probate can only be made as it is made in solemn form, and no will can be proved in solemn form with less than the whole number of witnesses if they are to be had." ^ The decree has the same effect as if the will had not been lost; and a failure 1 Sugden v. Lord St. Leonards, lock, 8 Humph. 390 (1847) ; S. C. 47 L. R. 1 P. D. 154 (1876); S. C. Am. Dec. 630, ia which, after the 34 L. T. (N. S.) 373: 24 W. E. 479; usual finding, the entire will, in 45 L. J. (P, & D.) 49; 17 Moak, 453. substance, is set out at length. 2 11 La. 134 (1855); S. C. 4 Am. SMosely v. Carr, , 70 Geo. 333 L. Reg. 364. See the elaborate de- (1883). cree set out in Buchanan v. Mat- INNOCENT PURCHASER. 183 to state tjiat it had been lost or destroyed subsequent to the death of the testator (where a will destroyed before could not be probated at all) was held immaterial.' Sec. 129. Innocent purchaser. — If the court admitting the will to probate had no power to do so, all sales under the will are void.^ It is axiomatic that if letters of admin- istration are granted, and the administrator proceeds ac- cording to law to sell and dispose of the property of the estate, distributing it to the heirs, he having no knowledge of the lost will, the sales are valid and he is protected ; but the heirs at law are liable to refund to the legatee or devi- see under the lost will when it is probated or established.'' A statute provided that "the title of a purchaser in good faith and for a valuable consideration from the heirs at law of any person who shall have died seized of real estate shall not be defeated or impaired by virtue of any devise made by such person of the real estate so purchased unless the will or codicil containing such devise shall have been .duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the court of chancery where the jurisdiction shall belong to that court, within four years after the death of the tes- tator, except: 1. Where the devises shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the state at the time of the death of such testator. Or, 2. Where it shall appear that the will or codicil containing such devise shall have been concealed by the heirs of such testator or some one of them. In which several cases the limitation contained in this section shall not commence until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative or to the proper surrogate." A testator 1 Converse v.. Starr, 33 Ohio St. ^Gainesv. Hennen, 34 How. 553 491(1873). (1860); Gaines v. New Orleans, 6 2 Waggoner v. Lyles, 39 Ark. 47 Wall. 643 (1867) ; Davis v. Gaines, (1874), 104 U. a 386 (1881). 184 LOST WILLS. died February 5, 1836, and his son and heir concealed, in 18il, the ■will until 1855. In the meantime, on application to a court of chancery by the heirs at law, the land was sold to a bona fide purchaser June 1, 1842. He took it with no notice of .the concealed will. This purchaser's grantee (who could avail himself of his grantor's equitable rights) claimed to hold the land under the clause protecting such purchaser, viz. : " Where it shall appear that the will or codicil containing such devise shall have been concealed by the heirs of such testator or some one of them;" in which case the limitation providing for those under disabilities did riot commence until after the expiration of one year from the time when such disability had been removed, or such will or codicil delivered to the devisee or his representative or to the proper surrogate. It was held that the "conceal- ment" referred to had "reference to a concealment at the time of or succeeding the decease of the testator; a conceal- ment of the instrument from the devisees by one heir, by depriving them of knowledge of its existence ; " that the exception had " no application to a case where the will has come to the knowledge or possession of the devisees or of those representing them, and is afterwards stolen or taken from them surreptitiously and secreted or destroyed ; " that this exception was intended for a case of concealment which should leave the devisees in ignorance of the will and of their rights under it. But it appeared that the mother, who was also a devisee under the will, had the will in her possession as late as 1841, when this son and heir stole it. Under these facts it was held that this statute touching con- cealment did not apply ; that neither the mother, the son, nor two children who respectively became of age October 13, 1844, and June 26, 1847, could claim under this will as against the bona fide purchasers. And it v/as further held that the proceedings in chancery by these minors' next friend to. sell this land for their benefit, and the resultant sale, passed all the title they had, they with their mother and recalcitrant brother being devisees, but in shares dif- COSTS. 185 ferent from that cast by the law of descent under this will.' Seo. 130. Costs. — The costs of setting up the will are usually taxed to the estate;^ especially if a reasonable doubt exists whether a will was lost or not.' But where the eldest son tore it up he was amerced in costs;* and the same was done where the widow tore it ap.' Where the exec- utrix lost the will she had to pay all the costs incurred by the defendants, and recovered only such costs as she would have incurred in proving the original will.^ If the propo- nent is unsuccessful he must pay all the costs, and each de- fendant may recover his counsel fees under the usual statute allowing the successful party an attorney's fee, as each has a right to counsel.' Where letters were improvidently issued the^'^ were set aside and costs taxed to the estate.* If the will has been spoliated or suppressed, the devisees, after it is established, may maintain ^n action against the spoliator or suppressor for damages, including their attor- neys' fees expended in procuring its probate.' 1 Cole V. Gourlay, 9 Hun, 493 » Martin v. Laking, 1 Hagg. 244 (1877). (1828). 2Everitt v. Everitt, 41 Barb. 385 6 Burls v. Burls, L. R. 1 P. & D. (1864); Gaines' Appeal, 11 La. 134 472 (1868). (1855); S. C. 4 Am. L. Reg. 364; 'Collyer v. CoUyer, 4 Dem. 53 Buchanan v. Matlock, 8 Humph. (1886); S. C. 17 Abb. N. C. 328; 390 (1847); S. C. 47 Am. Dec. 680. Lillie v. Lillie, 3 Hagg. 185 (1829) 3 Bessy v. Bostwick, 14 Gr. Ch. (costs). (IT. P.) 246 (1868). 8 Wyckoff v. Wyckoff, 1 C. E. Gr. 4 Foster v. Foster, 1 Add. 463 401 (1863). (1838). ".1 Cir. Ct. Rep. (Ohio) 95. APPENDIX A. The following forms are taken from Coote's Probate Practice : No, 1. PKOVING DRAFT. I, A. B., of - — , make oath aad say that the said C. D., late of , died at on the day of , 18 — , having made and duly exe- cuted his last will and testament, bearing date the day of , , 18— And I further say that since the death of the said deceased the said will has been lost or so mislaid that it cannot now be found. And I further say that the said will was prepared from the draft thereof now remaining in the registry of this court, and that there is no authentic copy of the said will. And I further say that on the day of , 18 — , the right hon- orable judge of this court pronounced for the force a;nd validity of the said will as contained in the said draft, and decreed probate of the said will to be granted and committed to me as the sole executor therein named, limited administration until the original will or an authentic copy thereof be brought into and left in the Registry of this court. And I further make oath that I believe the said paper writing now hereunto annexed and marked by me to contain the true last will and testament (the same being the original draft thereof) of the said testa- tor ; that I [am the sole executor therein named, and that I will well and faithfully administer the personal estate and effects of the said testator until the said original will or an authenticated copy thereof shall be brought in and left in the principal register of this court by paying his just debts and the legacies contained in his will so far as the same shall thereto extend and the law bind me; that I will exhibit a true and perfect inventory of all and singular the said estate and ^ffects and render a just and true account thereof whenever required by law so to do ; and that the whole of the personal estate and effects of the said testator does not amount in value to the sum of £ to the best of my knowledge, information and belief]. {Juraf] No. a. OATH PROVING COPY WHEN THE OEIOINAL IS LOST. I, A. B., of , make oath and say that the said C. D., late of , died at on the day of , 18 — , having made and duly exe- cuted his last wai and testament bearing date the day of , 18—. APPENDIX A. 187 And I further make oath and say that at the time of the death of the said deceased the said will was whole and unrevoked, and in the same state as when executed, but that the said will has since been lost, or so mislaid that the same cannot be found. , And I further make oath and say that shortly before the death of the said deceased a copy of the said will was made by , of , at the request of the said C. D., and the same was by him examined with the original and found to agree therewith. And I further make oath and say that I believe the paper writing hereto annexed and marked by me to contain the true last will and tes- tament (the same being the aforesaid copy thereof) of the said testator ; that I am the «ame executor named in said will ; that I [Conclude by adding the matter contained in the brackets of No. l\. [Jurat.l No. 3. OATH PROVING SUBSTANCE OR CONTENTS OF A WILL. I, A. B., of , make oath and say that the said C. D., late of , died at on the day of — — , 18 — , having made and duly ex- ecuted his last win and testament, bearing date the day of , 18—. And I further make oath and say that after the date and execution of the said will the same was deposited by the said deceased in his writing- desk, and remained therein till the day of , 18 — , when the said deceased abandoned his then residence at , and left in such residence his said writing-desk with other property and efifects belonging to him, and notwithstanding diligent search and inquiry have since been made for such writing-desk and original will the same cannot be found and are believed to be irrevocably lost or destroyed. And I further make oath and say that the said testator died without having altered or revoked his said will, and that on the day of , 18—, the right honorable judge of this court, on motion of counsel, de- creed probate of the substance of said will of the said deceased as con- tained in an affidavit duly made and sworn to by E. F., of , to be granted to me, until the said original will or an authentic copy thereof be brought into and left in the registry of this court. And I further make oath and say that I believe the paper writing or affidavit hereto annexed and marked by me to contain the substance of the said true and original will and testament of the said deceased, and that I am the lawful relict of the deceased and the sole executrix therein named ; that I tConcltide with the matter inclosed in the brack- ets of No. I\. [Jurat.'] APPENDIX B. The following extract is from Coote's Probate Practice, which may be found of use to the profession : When an original will has been lost or mislaid since the testator's death, but a, true copy has been made, the executor may take probate of such copy, limited until the original or an authentic copy be brought into the registry. But he must produce by affidavit that the original was duly executed ; that it was in existence after the testator's death, and has been since lost, and that the copy is a true one. Under some circumstances he must also advertise for the recsvery of the lost will or codicil. The form of advertisement is not settled by the registrar. The directions of the latter, however, are taken as to the newspapers in which the advertisement shall be inserted, and also as to the number of the insertions. The advertisement is usually inserted in two news- papers. If the will or codicil have been lost in the country the adver- tisement is inserted in a country newspaper and in the ' ' Times " (Lon- don) newspaper; otherwise it will be inserted in the "Times" and another London newspaper. The advertisement may appear simul- taneously or at intervals., K the original will or codicil be not recovered by these means, the prac- titioner inserting the advertisement will make an affidavit to that eflfect. No consent on the part of the next of kin of the ancestor is required. Where no copy of the will has been made, but the draft of it only can be produced, the case, though otherwise the same as that before referred to, is differently considered in one 1-espect. In order to entitle the court to deal with it on motion, the consent of all the next of kin must be obtained, i If this consent be not given, the draft must be propounded in a suit instituted for that purpose.2 When an original will has been lost or destroyed after a testator's death, or has been destroyed in his life-time, by another person with- out his consent, or by himself without intention, and no draft has been preserved and no copy has been made, with the consent of the next. of kin probate may be obtained of its contents, or of its substance and effect, if they can be established by parol evidence. 1 Barber [Goods of], 1 L. R. P. & 2 Burls v. Burls, 36 L. R. (N. S.) D. p. 268; S. C. 36 L. J. E. (N. S.) P. & M. p. 125; S, C. 1 L. R. P. & P. & M. p. 19; Butts [Goods of J, D. p. 473. 3 SpinkB, p. 259. APPisNDIX B. 189 In all these cases the validity of the execution must be shown as well as the substance of the will.i If a codicil has been similarly lost or destroyed, its contents may be proved In the same manner. The consent of the residuary legatee under the will will be required. Should there be no residuary legatee, or should the bequest of the res- idue have lapsed, the nest of kin of .the testator must consent. If the executor be the residuary legatee, his application for probate will be an iniplied consent. The practice of the court, in its selection of what shall go forth to the world as the exponent of the testator's lost will, has varied. Sometimes the court has granted probate of an aflSdavit of scripts (filed in the suit), and at other times of a deposition, or an extract from a deposition of a witness, as containing the contents, or substance, or effect of the lost will or codicil. If a codicil has been lost since the testator's death without a copy' having been made or the draft kept, and its contents or substance can- not be shown, the court will grant probate of the will, limited until the original codicil or -an authentic copy thereof shall be brought in. So if the will has been lost since the death of the testator, and it is impracticable to prove its contents or substance, the court will grant pro- bate of a codicil to that will containing dispositions independent of and referring to it.^ When the original will or codicil, or both, are in the possession of a person residing abroad, who has refused or neglected to deliver them up, but a copy has been transmitted to the executor, a probate of such copy will be granted to him on his showing, by affidavit, the manner in which it was transmitted ; that a better or more authentic copy does not exist in Great Britain, and that it is essential or necessary for the interests of the estate that probate be forthwith granted without wait- ing the arrival of the original or a better or more authentic copy. If the copy has been transmitted to a person other than the executor, he will be required to join the executor in the affidavit. The affidavit does not go into the execution of the will or codicil, as in the case of lost or destroyed instruments of that nature. Under the same conditions as before stated, a copy of a will or codicil may be proved. If no copy of the will can be produced, and its contents or tenor can- not be substantiated, he may take administration limited until the orig- inal or a copy be brought in.' 1 H. C. Gardner [Goods of], 1 Sw. 349 ; 1 L. R. P. & D. p. 73 ; 35 L. J. & Tr. p. 110. E. (N. S.) p, 113. 2 Greig [Goods of], 14 W. R, p. 3 Coote's Prob. Prac. 188-126 (7th Eng. ed.). INDEX. PAGE Access to will by third persons - - ... 94^ 95^ 96^ 97 Admissions of parties used to prove — execution of will .... ....72 loss of will ..72 contents of will -- -. I15 Advertisement for lost will - 61 I88 Affidavit of loss of will .... ....79 used to prove search for will - ... 53, note 6 Allegation of loss or destruction - - .... 57 Answer -- . .......g3 Attesting witnesses' death 68 Blanks in will - _ . ..... 93 Burden to prove execution -- 73 to overcome presumption of revocation . - - . . 104 Chancery has no power to probate will -.-..- 36 will established as a muniment of title ----- 26 will fraudulently destroyed .... . . 27 will not set aside for fraud ...... 33, 24 jurisdiction over lost wills -. - 33, 36, 41 Civil law pai't of probate law ......--33 Codicil, probated without will .......62 found after probate --. ..... 166 Competency of witness ..--.-.. 168-170 Compulsion - .- .....50 Conduct of testator to rebut presumption of revocation - - 87, 88 Consent of next of kin ...._- 188 Copy of will - - 188, 189 may be probated --- -----63 best evidence of lost will -..-.-- 106 statutory copy - 107, 136 ~ recording 108 written out from memory by witness, used as evidence of con- tents - -- 114 validity of will may be tried upon (see Miller v. Swan, 10 Ky. Law Eep. 1015) . - - 36, note 8 192 INDEX. PAGE. Costs - ' 185 County courts, probate of wills in early times - - - - 20 Declarations of testator — to prove execution of will - * - - - - - 70, 71, 73 to show revocation of will --------97 made at time of tearing will - ... - 91 to rebut presumption of revocation -• - - 84,85,86,91,92 to show destruction -....-.--79 danger of receiving - -•- - - - - - - 137 value of - - - - 137 made before execution of will, used to show contents thereof il6-123 made after execution of will, used to show contents thereof 134-129 Decree 179, 180, 183 Destruction of will — during life .-.----- ...44 while insane -- - -----46 does not always show a^ re vocation --..-- 46 by interested party, presumption as to - - - - 94 must be averred in petition, when - - - 57 Devisavit vel non - - - - - 29, 31, 36, 171 Distribution of estate enjoined when will is lost - - 63 Double issue - - ■ - ■ . " ■ 1'''4 Draft of will used in evidence - - r - - 109, 188 Duplicate wills -.-...-...98 Ecclesiastical courts — follow the civil law ----..----27 jurisdiction of - - - - - -' 20, 21, 26, 27 skill of judges therein - ------29 decisions as an authority ----- 159 Ejectment - ---. 134 Entire will need not be proved 153-161 Equity courts — set aside will procured by fraud 33, 23 jurisdiction over lost wills - - - - - 31, 33, 2* Estoppel ■ .... 165 Evidence, conflict in (see Proof of Contents of Will) ... 147 Execution of will, number of witnesses to prove - - - - 93 must be proved 64 how proved 64, 65, 66, 67, 68 Federal courts, jurisdiction of 88, 89 Filling blanks in will -98 INDEX. 193 PAGE, Finding of court ........... 173 Forms ]86, 187 Fraud — testator imposed upon is ...... 43 destruction or concealment is - - - . - 23, 39, 38, 47 court of equity will set aside will so obtained - - - 33, 34 Fraudulent destruction of will, what is - - - 33, 29, 38, 47, 59 presumption as to contents .... - 94 Heirs as parties - - - - -61, note 3 Injunction, to stop distribution of estate - - - - 63 Innocent purchasers - - . . . . . 183 Insanity of testator, presumption as to - - - - - 99 Interest of witness - .... . 168-170 Interest in estate, when it vests -------63 Issue - - 171, 174 double issue '--.---. 174 devisavit vel non- ...... 29,31,36,171 Joinder of actions ----, 63 Jurisdiction — general rules upon - - - - - - - - - 43, 43 probate courts over lost wills - - - 28, 39, 30, 32 civil law, foundation of probate law - - - 32 lack of jurisdiction, probate void ----- 41 ecclesiastical courts - - - - 19, 30, 31, 36, 41 chancery courts - - - - 33, 33, 34, 37, 33, 40, 41 probate courts have power to take evidence of a subsequent and lost will to defeat probate of a will offered in court for probate -- ....'... 103 revocation of probate of a will, court may - - - 165 United States courts - ... . 37^ 38-40 Jury - 171 proof of loss is for ,- ....-.-75 revocation is for - ..... 104, 105 King, seized goods of deceased subject ..... 20 Laches ............53 Limitations - - - - - - - - - 53, 53, 54 Legacies, failure to prove - - - - - - - - -155 Letters of testator used to prove contents of will - - - - 114 Loss of will, allegations as to 56, 57 must be averred in petition (Minor v. Guthrie, 9 Ky. Law Eep. 113) 57 194: INDEX. PAGE. Loss of will, production not required - .... 56 after death of testator .......44 during life of testator 44 Memoranda of testator used to prove contents of will 109, 110, 111, 113, 113 Number of witnesses --93 Old will, proves itself upon production - - ■ . . 135^ note 4 Order of proof 74, 75, 105 Parol evidence, subsequent lost will shown to defeat probate of an eai'lier will ... .. ...36 Part only of will proven, may bd probated (see Todd v. Ren- nick, 33 Pac. Rep. 898) - - - - - 153-i61 failure to prove some legacies - ... . 155 may show revocatory clause ...... ]6l Parties - ... - 60, 61, note 3 Petition, .allegations of - - - 56 must show will was executed - - - - 56 must show will unrevoked - - .... 104 copy of will not necessary ...----- 56 must show will lost or destroyed - - - 57 Personal-property will, jurisdiction of English ecclesiastial courts 30, 36 Plea - - ... . .... 63 Possession of land for long time not disturbed - - - 135 Possession of will as affecting presumption of destruction - - 194 Practice — costs ----- ...... 185 decree - - - - - 179, 180, 181, 183 double issue - - - .... 174 in England- - - - ... 188,189 finding - 178 issue - .....*.... 171 jury - - - - - - - 171 trial - - - - 171 verdict .... 173 Prelates of church, invested with the king's prerogative - - 30, 31 Presumption as to existence of will when its execution is shown - 74, 75 Presumption concerning execution - - - - - - - 69, 70 Presumption when destroyed by party - 73, 94 Presumption concerning revocation — lost will presumed to have been revoked (Minor v. Guthrie, 9 Ky. Law Rep. 113) 80, 100 INDEX. 195 Presumption concerning revocation (continued) — page. change of situation as to devisees ------ 99 poverty of child - ---'-----99 burden to overcome - --..... X04 sufficiency of evidence to overcome - - / - - - 103, 104 insanity of testator -----... 99, lOO copies,- - --J--..98 duplicates .----- ... 93 mere suspicion does not overcome - - - . 104, note 3 war, effect upon - ---•-.... 94 possession in third person - - - - - - - - 98, 94 question for jury . .' 104,105 rebutting .......... 83 Probate courts — have only statutory jurisdiction - - - - . - 86, 37 have exclusive jurisdiction - - - - - - - 80, 38 decree void when has no jurisdiction (Miller v. Swan, 10 Ky. Law Eep. 1015) - - ' 41 jurisdiction in Ohio 33 jurisdiction over lost wills - ......28 civil law part of- - -. - . . . .33 Production of willj not required - - - , - - 56, 63, 105 Prohibition, writ of lies to ecclesiastical courts - - - - 31, 33 Proof of contents of will — admissions of party to prove (but see Matter of Ruser, 6 Dem. ]) - .... , ... 115 order of proof - - - - 74, 75, 105 secondary evidence admissible ------- 105 same degree of evidence as is required to prove a deed - - 105 best evidence must be produced ... . . 106 copy of will- -- ....... 106 statutory copy 107, 108 copy required by statute -- 136 copy recorded in recorder's office - - r - 108, 109 draft of will " 109 memoranda of testator - - - 109,110,111,113,113 letters of testator 114. purported copy ..-------.114 probable disposition of property - - - - - -115 declarations of testator before will executed - - - 116-133 declarations of testator after will executed - . . 134-139 number of witnesses necessary - - - . 144, 145 opportunity of witness to know contents - - - - 140-143 corroborating witness ........ 143 sufficiency of evidence when destroyed by interested person IBS sufficiency when destroyed by proponent . . . _ 134 196 INDEX. Proof of contents of \^•ill (continued) page. ejectment - - - .... 134 destruction before death .--...-- 135 substance only need be proved ...... 147 safBciency of proof generally - - 33, 130-133 degree of proof - - - - ... 130-133 danger of establishing - - - -- - - - 130 conflict in evidence - - . . 1 . 147 interest of witness - - .... 140-143 memory of witness - - . . . . ' 140-143 value of testator's declarations - - - . . 137-139 must conform to petition - ... 59 examples - ........ 143 Proof of execution — attesting witnesses dead .... ...gS admissions may be used - - - - - 73 decla,rations of testator to show - - 73 burden on proponent - - - - - - 73, sufficiency - ... . . - 73 presumption concerning - : - - - 70 destroyed, presumed revoked - - - - - - 73 must be made ..... .-64 how made 64, 65, 66, 67, 68 Proof of loss of will must be shown - - - - 74 to whom directed - - ... - 75 Proof must conform to petition . . . - . - 59 Proof of part of will only - - - - - 153-161 Proof of search, how made - - - • - - - - 76, 78 examples 76, 77, 78 Purchaser without notice of lost will ....... 183 Eeal-property wills, control over by ecclesiastical courts 30, 31, 23, 26 Eeraainders, failure to prove - - - 156-160 Res adjudicata -.- .;.... .50 Res gestae, declarations when part of - - - 7 - - 91 Revocation — destruction of will is not - - . - - 46, 47 presumed from loss (Mercer v. Mercer, 87 Ky. 31 ; Minor v. Guthrie, 9 Ky. Law Rep. 113) - - - 80, 100 ' presumption when in third person's possession ... 93^ 94 change in situation of legatee - - - 99 poverty of child ... ......99 -possession by testator of will ...... 94 conduct of testator to show - - - - - - - 87, 88 declarations of testator to show .... 84, 85, 86 petition must negative ........ 104 INDEX. 197 Eevocatipn (continued) page. burden on propounder to overcome preBumption of revoca- tion . , - - - 104 war, effect of upon presumption of - - - - - - 94 Revocation of will may be shown by latter but lost will - 163-165 Revocatory clause only proved, effect - - ... 161 Revocation of probate of will ....... 165, 166 Search, proof of - -• 76, 78 affidavit to show ........56, note 6 examples of search 76, 77, 78 competency of witness to show ..... I68 Spoliated will, destruction by proponent - - - - - -134 sufficiency of evidence to show contents of - - - 133, 133 held as a trustee . - - . - 38, 49 Staleness ' ... 53 Statute of frauds -- - .....54 Statute of limitations - . - . . - - 53, 53, 54 Statutes — Arkansas ........41 California -- .......59 Indiana - ... ... 108 Missouri - ..... -43 New York 50, 51, 108, 137 Ohio - - - ..... 33 33 and 34 Henry VIII. 20 Statutes mutt ba complied with .... - . 48 Striking out clause in will ....... 93 Subsequent and lost will, proof of to defeat probate of one offered 36, 55 when presumed to revoke a former will not produced or con- tents shown ... . ...g5 Substance of lost will need only be proved - - - 147 Sufficiency of proof - - - - - 130, 131, 133 when destroyed by interested person .... - 133 Sugden's will, memoranda used in - - - - 111, 112, 113 Temporary probate --------- 61, 188 Testator's knowledge of destruction - - 45 Title, use of lost will to prove ..---. 49 lost will set up as a muniment of title by courts of equity - 35, 26 Torn will, pieces put together - - - - 25, 105 Trial . . . . ' . . 171 Trustee, spoliator holder of property - • - - - 38, 40, 49 Undue influence - .....--50 United States courts, jurisdiction of - - - - 37, 33 39, 40 198 ^ ■' ■ INDEX. ^ PAGE. Verdict 178 Vested rights -- ....- -183 / Waiver, non-joinder of parties may be waived - - - - - .61 War, effect upon revocation of will - - - . - - 94. Will in existence cannot be proved as a lost one ... 57 Witnesses — number (see Tod J v. Eennick, 23 Pac. Kep. 898; Matter of Ruser, 6 Dem. 31) - 93,. 144, 145 competency 140, 141, 143, 168-170 interest of - 140, l4l, 143 memory of - - 140, 141, 143 corroboration - ..... - 143 opportunity to know contents of will (Matter of Euser, 6 Dem. 31) - ... . . 140 death of attesting witnesses .......68 :t ■¥ Q