Morningstar and others v. Selby and others. Dec. Term, 1846. legatees and devisees were also completely vested at the in- IN BANK. stant of the testator's death, and before probate. The after loss or destruction of the will, by accident or fraud, cannot destroy and divest those vested rights and interests. In this, Wentworth, Swinbourne, Toller, and Powell, adjudged cases, 'ancient and modern, all agree. The rights and interests of 'the legatees and devisees are no more lost and destroyed than the rights of a creditor by the accidental loss of his bond, or of the purchaser, by the casual loss of his deed. The devi'sees take as purchasers under a will." Article 1637 of the civil code of Louisiana, declares: that "no testament can have effect, unless it has been presented to the judge of the parish in which the testator lived," &c. The judge shall order the execution of the testament after its being opened and proved. Neither the courts of Louisiana nor the Supreme Court of the United States, in 2 Howard's Rep. 619, doubt the rights of devisees under a will lost or destroyed; the only question is, before what tribunal shall the proof be made? We ask the attention of the Court to the authorities on that point, referred to in this and our opening argument, and the decided language of the Judge delivering the opinion. of this Court, as to the rights of a party under a lost deed, in Lessee of Blackburn v. Blackburn, 8 Ohio Rep. 81; and with these remarks, as we are resisting a position not assumed on the other side, we dismiss this branch of the subject with, this remark : that jurisdiction is also claimed under another rule that of advancement and recognition of title, disposition by parol possession and improvements by complainants, that the testator would have been, and defendants now are estopped, in equity, from setting up a claim to the real estate described in the bill. See Buckingham et al. v. Smith & Dille, 10 Ohio Rep. 298; 1 Johns. Ch. Rep. 350, and cases cited in 10 Ohio Rep. Should the Court be of opinion, that, as a Court of Chancery, they have no jurisdiction to establish this will, they must say that a Court of Probate has; in which event, if, in the opinion of the Court, we have not made a satisfactory case for a decree Morningstar and others v. Selby and others. IN BANK. On the other branch of the case, we ask the cause to be conDec. Term, tinued until the application shall be made to the Court of Pro 1846. bate to prove it. We do this for the reason, that should such application fail, which we do not apprehend, this Court may ultimately settle the rights of complainants, as to improvements, &c. BIRCHARD, J. Preliminary to the consideration of any of the many questions which have been so fully litigated in this case, we are called upon to determine whether, in Ohio, a Court of Chancery has jurisdiction in matters of probate, and may entertain a bill, the sole object of which is to establish and prove a lost or spoliated last will and testament. For it is manifest, that, if no such power exists, it is not required and would be improper to pass upon any of the facts mooted in this controversy. The sole object of the bill, is to establish such lost or spoliated will. Upon this question of jurisdiction, we necessarily have to recur to the original source of all our powerthe constitution of the State. Article 3, section 1, vests the judicial power of the State, "both as to matters of law and equity," "in a Supreme Court, in Courts of Common Pleas for ' each county, in justices of the peace, and in such other courts ( as the Legislature may, from time to time, establish." By section 2, the Supreme Court "has original and appellate jurisdiction, both in common law and chancery, in such cases as 'shall be directed by law." By the 3d section, the Courts of Common Pleas, within their respective counties, "have common law and chancery jurisdiction in all cases directed by law." Section 5, is in these words: "The Court of Common Pleas, ' in each county, shall have jurisdiction of all probate and tes'tamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law." From one or the other of these several sections, the authority to entertain this bill must be deduced. If not contained there, or if the spirit of these sections and the legitimate legis Morningstar and others v. Selby and others. lation consistent with them have not conferred it, we shall be IN BANK. forced to say, it does not exist. That the fifth section authorizes à chancery proceeding in a case like this, is a position that cannot be maintained. Its terms confer jurisdiction of all probate and testamentary matters upon the Common Pleas Courts, and not a word is `contained in the instrument in conflict with this general grant of power. Expressio unius est exclusio alterius," is a maxim clearly applicable to this section, so far as matters purely of a probate and 'testamentary character are concerned. The express grant of power forbids, by inference, an implied one in connection therewith. The jurisdiction is, therefore, exclusive, as to all matters merely probate in their nature. This opinion is not new in this Court. In pronouncing the decision in Hunter's case, 6 Ohio Rep. 501., Wright, J., commenting upon these articles of the constitution, observes, that they indicate. "a determination to keep the ecclesiastical, common law and chancery jurisdictions as separate and distinct as our judicial system will permit;" and, again, that the probate of a will "belongs neither to the common law nor equity jurisdiction 'conferred upon the Court of Common Pleas, but appertains to the ecclesiastical jurisdiction of the English courts, which is specially conferred upon our courts of common pleas as courts of probate." Again, in 8 Ohio Rep. 19, this language is held: "By our law, a particular tribunal is appointed to receive probate of a 'will. It does not signify, that it is not by name a Court of Probate that it is the Court of Common Pleas, with a probate side to it. The same court has jurisdiction of both chancery and common law controversies, and yet this mixture of powers would not avail, as an argument to prove that its equity jurisdiction was different in kind from that of courts of chancery in England.” Consistent with these remarks, and the 3d article of the constitution, is the "act to organize the judicial courts." Sec. 4. "The Court of Common Pleas shall have power to examine Dec. Term. 1846. Dec. Term, 1846. 6 Morningstar and others . Selby and others. IN BANK. and take the proof of wills, grant letters testamentary thereon, &c., and to hear and determine all causes of probate and 'testamentary nature." All the chancery powers of that court are granted in other words. The act relating to wills, still keeps up and sustains the same separation of jurisdictions. The probate is of the original jurisdiction of that court, and so recognized by the act in which the proof is prescribed, the mode of proceeding, and the effect of the record. And in Swan's Stat. sec. 33, p. 996, it is declared, that "no will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate," &c., as provided by the act. The act makes no mention of any method of establishing a will by a chancery proceeding. The probate is treated as a judicial act at law, binding upon all parties, and final and conclusive upon all parties. There is no appeal from the decision, no writ of error or bill of review; no way of vacating it, except the peculiar one provided by our statute. 9 Ohio Rep. 96; 8 Ohio Rep. 239. To test the propriety of encroaching, in any manner, upon a jurisdiction so peculiar, and which, from its nature, ought to be exclusive, let us anticipate some of the difficulties that might flow from entertaining this bill. 1. A decree in chancery is not the probate of a will. Hence, a decree establishing a will cannot operate to give it vitality and is utterly powerless, or else the 33d section of the statute relating to wills must be taken and held, pro tanto, repealed by the decree. The decree and the statute would speak different language on the same subject. One would say, the will of Morningstar is effectual to pass real and personal property, without admission to probate, as the act provides; the other, that it is of no effect. The conflict is irreconcilable, and the weaker in the contest must give way. Again what would be the effect, if, after rendering a decree either for or against the validity of the supposed lost will, a real and different will should be produced? Is the litigation a bar to its probate? Does it oust the Court of Common Pleas Morningstar and others v. Selby and others. Dec. Term 1846. of jurisdiction? Might not the will then be called for, be pro- IN BANK. duced, be proved and admitted of record, and would it not be effectual to vest titles according to the devises and bequests of the testator? We think it would, because the chancery proceeding would be regarded wholly coram non judice and void, and because the statute would enforce its production, and is express as to the effect of the probate. But it is urged, that the spoliation of the supposed will, with intent to destroy the alledged devises to complainants, affords grounds of equity jurisdiction that the power to establish spoliated, suppressed and destroyed wills was one of the powers known to courts of chancery at the adoption of our constitution, and sundry authorities are cited to sustain the position. A word as to these: 1st. The New York cases, by inference, at least, if not directly, make against the complainant. Sec. 63 of their statute (Revised code, vol. 2, p. 66,) confers upon the court of chancery the same power to take the proof of the execution and validity of a lost or destroyed will and to establish the same, as in the case of lost deeds; and the constitution of the State of New York contained nothing in conflict with the act. The grant of the power, however, shows that the jurisdiction was not then understood as being inherent in the chancery courts, otherwise we should have seen no such specific grant of jurisdictión. All the other cases cited are commented upon, in the case of Gaines et ux. v. Chew et al., 2. Howard's U. S. Rep. 647. Those authorities, carefully examined, will show that a Court of Chancery has no inherent power, either in England or America, to establish a lost will. It is true, that the U. S. Supreme Court did not, professedly, decide the point. They however did decide, that a will must be proved before a title could be set up under it, and that, by the general law, a Court of Probate must take the proof, (page 646;) and a discovery was ordered in that case, as it would seem, for no other purpose than to aid the appropriate probate tribunal in establishing the |