Morningstar and others v. Selby and others.

Dec. Term, 1846.

Story's Equity Jurisp. 832, note to sec. 1447: "The heirs IN BANK. 'at law cannot come into equity for the purpose of having an 'issue, to try the validity of the will at law, unless it is by 'consent, for he may bring ejectment. But, if there be any 'impediment to the proper trial of the merits on such an eject'ment, he may come into equity to have them removed.

Courts of equity do not seem to have any direct, or original. "authority, to establish the validity of a will of real estate per se, but only as incidental to some other object; as carrying into effect a trust, marshaling assets, &c. For, if no obstacles intervene, the devisee may sue at law, if he has the legal 'estate. If, after repeated trials at law in such a case, the will is established by a satisfactory verdict and judgment, courts ' of equity will then interfere, and grant a perpetual injunction ' against the heir, to prevent endless litigation, as it does in 'other cases."

This Court, after reading the above, will probably have a clear view of the jurisdiction of a Court of Chancery in England, to try the validity, &c., of wills; but we will, notwithstanding, submit some further English law.

Pemberton v. Pemberton, 13 Vesey, jr. 290, was an issue out of chancery, devisavit vel non, and the principal question was this: whether the alteration, &c., of one of the duplicates of a will, revoked both? and, after two trials at law, a third was asked. A third trial at law was granted by Lord Eldon, who says: "My opinion is not formed upon the supposition, that the verdict is wrong, or right; nor does it interfere with 'that conclusion, which, upon subjects of this nature, I take to 'be entirely with the jury; giving due attention to the topics of law, properly stated to them by the judge. That is par'ticularly proper, in a case where a court of equity is dealing

with a will; as to which, the administration is very different 'from that in other cases, upon most of which this Court has jurisdiction, to determine upon influence of fact, as well as "doctrine of equity. But the authority to declare what is, and "what is not a man's last will, is denied to this Court."

IN BANK.

Morningstar and others v. Selby and others.

The syllabus of the reporter in this case, is thus: "A court Dec. Term, of equity has no jurisdiction to declare what is, or is not, a

1846.

'man's last will."

"There is one case in which fraud cannot be relieved against, ' in equity, though a discovery may be sought; that is the case ' of fraud in obtaining a will, which, if of real estate, must be 'investigated in a court of common law, and, if of personal 'estate, in the Ecclesiastical Court." 2 Daniels' Prac. 29.

If the heir has stolen a will, or any one has stolen a deed for spoliation means nothing less than robbery and pillage courts of equity, in England, will compel the redelivery of the will or deed, and enforce the most stringent decree possible, as to the property, until the instrument is delivered up. But they do not "prove, confirm and record it," as is prayed in this case. A stolen will stands upon the same footing as a stolen deed.

But we claim that, under the constitution and laws of Ohio, probate and testamentary matters come within the exclusive jurisdiction of the Court of Common Pleas.

"The Court of Common Pleas, in each county, shall have jurisdiction of all probate and testamentary matters." Const. of Ohio, Art. III, sec. 5.

The statute relating to wills, (Swan's Stat. 992,) after pointing out the mode of proceeding in the Court of Common Pleas, by which wills may be proved, and under what evidence they may be admitted to probate, and providing for their being recorded, enacts as follows:

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"No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate or record, as provided in this act."

Now, if a bill of chancery is filed, to prove and establish a will, or an issue out of chancery is ordered, to try the validity of a will, and a decree made on the verdict, such suit and proceeding is a testamentary matter. What, then, becomes of the constitution? Such decree makes the will effectual to pass real estate; but where is the admission to probate or record, according to the provisions of the statute relating to wills?

Morningstar and others v. Selby and others

But it may be claimed that, if a will be lost, a court of probate has no jurisdiction. It would be a sufficient answer to this to say, that the subject matter is still testamentary, and the constitution and statutes make no exception, in case of a lost

will.

The English Ecclesiastical Court cannot be supposed to have more enlarged powers than our Court of Common Pleas. The Ecclesiastical Reports are full of cases in which probate of a lost will is granted, "as contained in the depositions of the witnesses."

"And, at this day, it is quite clear that the contents of a ' testamentary instrument may be thus established, though the < instrument itself cannot be produced, upon satisfactory proof 'being given that the instrument was duly made by the testa'tor, and was not revoked by him; for example, either by 'showing that the instrument existed after the testator's death, ' or that it was destroyed in his lifetime, without his privity or ' consent." 1 Williams' Executors, 209.

So, in Massachusetts, Davis et al. v. Sigournoy, 8 Metcalf, 487. The syllabus is thus: "Although an unrevoked will, ' which is lost or destroyed, may be admitted to probate, upon parol proof of its contents, yet it will not be so admitted, unless the evidence of its whole contents is most clear and satisfactory." The case was an appeal from the decree of the judge of probate, allowing the will, &c.

"A codicil, fraudulently destroyed, was established upon parol proof of its contents." Clark et al. v. Wright, 3 Pick.

67, syllabus.

So, in Alabama, Apperson v. Cottrell, 3 Port. 51. Held: "If a will be wholly or partially canceled or destroyed by the 'testator, while of unsound mind, probate will be granted of it, ' as it existed in its integral state, that being ascertained."

So, in Kentucky; Happry's will, 4 Bibb, 553: "Probate 'may be granted of a copy of a will when the original cannot ' be produced."

IN BANK. Dec. Term,

1846.

IN BANK.

Dec. Term,

1846.

Morningstar and others v. Selby and others.

So, in Graham v. O'Fallen, 3 Miss. 507: "A will being 'lost or destroyed, probate may be granted upon a copy; also, 'where there is no copy, the contents of the will may be proven, and the will established by the subscribing witnesses, or 'others who have read it."

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A Court of Probate generally hears witnesses, face to face, and the testimony is reduced to writing, under the eye of the Court. A Court of Chancery acts upon testimony without seeing the witnesses, and without knowing any thing about their oral statements, or their manner upon the stand. We therefore suppose the probate court quite as safe a tribunal to decide upon a lost or destroyed will as a Court of Chancery.

But it may be claimed, that this is not a case in which a will has been lost, but a case for relief, where there has been pillage and robbery of the will by the defendants. This cannot, we suppose, change the question as to jurisdiction. No such distinction, between spoliation and a lost will, is made by the constitution or laws of Ohio, nor should the jurisdiction of the courts depend upon such a distinction.

In the case of Hunter's will, 6 Ohio Rep. 499; Ewing et al. v. Hollister, 7 Ohio Rep., part 11, 140; and Lessee of Swazey's Heirs v. Blackman et al., 8 Ohio Rep. 5, the reasoning of the Court is founded upon the recognition of exclusive jurisdiction being vested by the constitution, &c., in the Court of Common Pleas. So, the statute organizing the courts, and defining the limits and extent of their respective jurisdiction, gives expressly to the Court of Common Pleas judicial power to "take the proof of wills, and to hear and determine all causes of a probate and testamentary nature." Swan's Stat. 222, sec. 4.

It may, we think, be said of the experience of the bench and bar of Ohio, as it was by the Supreme Court of Massachusetts, in 1 Pick. 549, of the bench and bar of the latter State, "that no instance had occurred of a will being attempted to be proved otherwise than by a decree of the probate court."

Morningstar and others v. Selby and others.

Dec. Term,

1846.

Probate in the Common Pleas being conclusive, (Bailey v. IN Bank. Bailey, 8 Ohio Rep. 239,) suppose the Court entertain jurisdiction in this case, and dismiss the bill by decree on the merits, and the will of Morningstar is afterwards offered for probate, will the decree of this Court oust the Court of Probate of jurisdiction? Does the pendency of this bill prevent the Court of Probate from now acting in the premises?

Upon the questions thus presented, we refer the Court to the case of Gaines et ux. v. Chew et al., 2 Howard's U. S. Rep. 619, where the subject is very fully discussed.

Smith & Probasco, in reply.

counsel, is, that this
Without waiving the

The first point made by defendants' Court has no jurisdiction of the cause. objection as to the time at which this exception is taken, or the manner of making it, we will proceed at once to consider the argument on that point.

This assumption rests upon the ground, that the whole jurisdiction in probate and testamentary matters is, by the constitution and laws of Ohio, vested in the Court of Common Pleas, sitting as a Court of Probate. To sustain this view, the third article, 5th section of the constitution is referred to, which declares that the "Court of Common Pleas shall have jurisdiction of all probate and testamentary matters." Defendants' counsel seem to have adopted an extraordinary mode of construing the constitution, when they exclude every other part of the instrument. Leaving out the great leading rule of construction, which is to look to the whole instrument, they have, doubtless, been led into this error. The second and third sections confer upon the Courts of Common Pleas and Supreme Court, chancery powers. What were these powers at the time of the adoption of the constitution? One of them clearly was, to establish spoliated, suppressed and destroyed wills. See 3 Atkyns, 360; 1 Bay S. C. Rep. 464; Legare v. Ashe, 6 Wend.