Morningstar and others v. Selby and others. IN BANK. 173; 7 Dana, 90; 11 Wendell, 227; 2 Howard's U. S. Rep. 619, and numerous other authorities. Dec. Term, 1846. Another of these powers was, to compel an account and distribution of a decedent's estate. These being matters of equitable cognizance, were never intended by the framers of the constitution to be taken from a Court of Chancery and settled exclusively upon the Court of Common Pleas, as a Court of Probate. The Common Pleas having chancery jurisdiction, cannot be divested of any portion of that power, unless by the use of expressions wholly inconsistent with the retention of that power. When the convention declared that the Court of Common Pleas should have chancery jurisdiction, it meant such jurisdiction as was ordinarily exercised by such courts. The fifth section is, therefore, to be construed with reference to this previously conferred power; and although the comprehensive term "all" is used, it can only mean, all powers not conferred upon other courts. This view of the constitution harmonizes its provisions.Again, the 5th section declares that the common pleas shall have jurisdiction in matters of probate; but, upon the mode of its exercise, the section is silent. Had the Legislature failed to direct the mode, that Court, from its inherent power, might have prescribed the mode. It might have directed, in all cases where a will was offered for probate, that it should be by proceeding in chancery, or any other convenient mode. If, therefore, the power of the Common Pleas to admit all wills to probate, is exclusive, and, when the Legislature fails to direct, may adopt its own mode, we submit to the Court, whether the decree of the Common Pleas, admitting that will to probate, is not binding upon all the parties, and whether the appeal from that decree, to this Court, should not be dismissed? This conclusion seems to follow legitimately, from the premises assumed by the counsel on the other side. That this Court has not entertained such an opinion, in regard to the exclusion of all other than probate courts from the Morningstar ond others v. Selby and others. Dec. Term, 1846. determination of testamentary matters, is manifest. If they IN BANK. agreed, in this respect, with defendants' counsel, we ask, upon what principle did this Court entertain the case of Cram et al. v. Green, 6 Ohio Rep. 429? The account and distribution, by executors, of a decedent's estate, is, without question, a testamentary matter. Being such, the probate court, according to the argument of defendants' counsel, had exclusive cognizance of the matter, and no other tribunal could entertain it. That very numerous class of cases, growing out of the fiduciary relations of executors and administrators, have all been improperly decided in equity, if the probate court is an exclusive tribunal. Having attempted to show that the jurisdiction of the probate court is not exclusive, we turn to the statutes, to prove that it has not been so considered in our legislative history. Thus, we have always had a statute providing for an issue of devisavit vel non out of chancery. If the courts of equity are forbidden to entertain jurisdiction of probate matters, how could they try questions of will, or no will, by a jury? and how could the Supreme Court, on appeal, try the same question in the same manner? Again, if no other than a court strictly probate can decide questions of this kind, how did it happen that the learned gentleman, who drew up our statute of wills, and the Legislature which enacted it, should insert a provision that, if "there are 'not a sufficient number of disinterested Judges of the Court ' of Common Pleas to determine upon the probate of a will, or 'to determine any other matter, touching testamentary matters, 'intestate's estates, or the settlement of decedent's estates," the Court shall certify the matter up to the Supreme Court, who are directed to hear and determine the matter," and make orders in the premises? See Statute of Wills, (Swan's Stat.) 994-5, sections 17, 22 to 26, inclusive. These provisions are legislative constructions of the constitution. The Court will sustain them, unless they palpably infringe the provisions of that instrument. The mode of contesting a will, and the correctness and constitutionality of Dec. Term, 1846. Morningstar and others v. Selby and others. IK BANK. that mode, have never been questioned. This Court have uniformly taken jurisdiction of such cases, without hesitation; its jurisdiction to establish a will is, necessarily, involved in the statute referred to. If the Court possesses jurisdiction in that case, its power in this cannot be questioned. We are not aware of any judicial decision under the 17th section, but we suppose that that section would be sustained. Passing from this point, let us examine the second: that the Court of Common Pleas, as a court of probate, can take the probate and admit to record under our statute a lost or spoliated will. This, to us, we must confess, is untrodden ground. After some years acquaintance with judicial proceedings in this State, we have never heard of such an attempt; and no member of the profession with whom we have conversed, can refer to an instance of the kind. The opinion seems to be settled and uniform, that chancery is the only proper form for such a case. Three cases of this kind are now in the Supreme Court. This is a matter dependent very much upon statutory regulation. It is conceded that such a power is exercised by probate courts in some of the States, and by the Ecclesiastical courts in England, in matters of personalty. It would seem, however, that before decisions to that effect in other States are considered as conclusive upon this Court, it should be shown that their statutes in relation to the probate of wills, were similar to ours; and then, only, as an aid in construing our own statute. Does our statute contemplate the probate of a lost or destroyed will before the Common Pleas, as a court of probate? The Court is restricted to the probate of two kinds of wills, written and nuncupative. It must be conceded that no express power is conferred by the statute to admit a will to record, unless it be produced. Can such power be inferred from the language of the statute? The Court must decide either that they, as a court of chancery, have jurisdiction to establish this will, or that a court of probate has full and plenary power to do so. If the latter, then an immense amount of labor Morningstar and others v. Selby and others. Dec. Term, 1846. and expense has been incurred in this case unnecessarily, IN BANK, when, during its whole progress, until the present term of this Court, the question of jurisdiction has neither been mooted nor questioned. The statute no where alludes to the probate and admission to record of the substance or copy of a will, but to the will itself, which is to be produced and proven by the subscribing witnesses. If the will is secreted, process is provided for its production. It is to be filed in the clerk's office, and recorded with the testimony. A copy of the recorded will is evidence, but not the copy of a copy. Administration with the will annexed, may be granted, but not with a copy. The only provision for recording a copy of a will, is where it has been proven in another State or territory, or where real estate, lying in a county other than the one in which it is proven, is devised by the will. It never could have been the intention of the Legislature to render null or invalid, wills lost or destroyed, before probate. This doctrine would not be claimed a moment by the learned counsel on the other side; and yet, they have made no provision for their probate. They are left, where lost wills and spoliated wills were left, with courts of chancery. In Alabama, 3 Porter, 51, referred to in defendants' brief, the Orphan's Court have the right, by statute, to direct an issue and summon a jury to try it. Our Court of Probate have not that power; and if in Massachusetts the statute is not express, it must result ex necessitate, to protect the rights of the devisees and legatees, there being no other court which can protect them. These views we have thought proper to submit, relative to the proof of a lost will under our statute, before the Court of Probate. We think we hazard nothing in saying, that the general, if not the uniform opinion of the profession is, that it cannot be done, and that the opinion is as universal that chancery has the power, and is the appropriate tribunal to establish a lost or spoliated will. If the matter was doubtful, merely, this Court, after answers and full proof, no objection having Dec. Term, 1846. Morningstar and others v. Selby and others. IN BANK. been made by demurrer to the jurisdiction, would entertain it. See Underhill v. Van Cortlandt, 2 Johns. Ch. Rep. 339; 1 Ohio Rep. 127; 2 Caine's Cases in Error; Ludlow v. Simond. These cases sustain the principle, that if there be a remedy at law, and the defendant answers instead of demurring to the bill, and the cause comes on to be heard upon the merits, it is too late to object to the jurisdiction of the Court, on the ground that complainant has a remedy at law. In arguing the question, as to the inability of a Court of Probate in this State to administer adequate relief in a case of this kind, we will not be understood, for one moment, as expressing a doubt of complainants having adequate remedy somewhere. Such a doctrine as that, no one will contend for. The learned counsel for defendants have not intimated any such ground of defence in their argument. Such a defence will not be set up. Their position is, that the Court of Probate has ample power and authority to administer relief to complainants on their making proper proof. Certainly, no judicial tribunal, and no lawyer, would doubt the proposition, that where a testator makes a will, with all the requisite solemnities, disposing of his property, and that will has not been revoked, but has been lost, fraudulently spoliated or destroyed, that such destruction or loss would not affect or impair the rights of the devisees under the will. A contrary doctrine would be an insult to public justice. A devise is as sacred an instrument as a deed, bond or any other instrument conferring rights. No rule of public policy can exclude parol proof of its contents, when lost or destroyed, any more than the contents of a deed or bond. Every authority, English and American, admit the rights of devisees under a lost or spoliated will, in the most direct and unequivocal terms. It is true, that their rights are inchoate, and, in one sense, imperfect, until established before a judicial tribunal. The language of the Court of Appeals in Kentucky, in George Payne's Will, (4 Monroe's Rep. 423-4,) is: "In law, ' upon the death of the testator, the rights and interests of the |