
    Smith, &c. v. Carter, &c.
    February, 1825.
    Wills — Proof of Contents — Parol Evidence. — Where a will has been regularly proved in a Court of Probate, and afterwards destroyed by the enemy, with the book in which it was recorded, its contents may be proved by parol evidence.
    Destruction of Records Statute — Cumulative.—The remedy pointed out in the 3d section of the act for the relief of persons who may be injured by the destruction of records, 1 Rev. Code. 516, is only cumulative, and does not deprive the party of his remedy at common law.
    This was an action of ejectment brought in Henrico Superior Court of Law, by Smith and others, by their guardian, against Carter and another, for a tract of land in Henrico county. On the trial of the issue, the plaintiffs proved that a certain Obadiah Smith died in the year 1765, seised in fee of the land in the declaration mentioned, leaving three sons, William, (his eldest and heir at law,) Samuel and John; and they produced the will of William, the heir at law, made and proved in North Carolina, and thence certified to the County-Court of Henrico, where it was duly admitted to probate, and recorded; whereby the land was devised to the plaintiffs. The defendants, on their part, produced the certificate of fhe probate of the last will and testament of the same Obadiah Smith, in Henrico Comity Court, in October, 1765. This certificate was duly authenticated, and it states that the will was proved by the oath of the witnesses thereto. It was admitted that the Henrico will-book of the year 1705, and for some time before and after, along with sundry *other papers and records, were destroyed
    by the public enemy during the war of the revolution. And then the defendants offered parol evidence to prove the contents of Obadiah Smith’s will, mentioned in the certificate of probate, so far as the same respected the lands in controversy; and that that will contained a devise thereof to that testator’s son John, in fee simple, under whom the defendants claimed title. To the introduction of this parol evidence, the plaintiffs objected; but the Court overruled the objection, and admitted the evidence; and the plaintiffs excepted to the opinion. A verdict and judgment were rendered for the defendants. The plaintiffs appealed to this Court.
    Nicholas, for the appellants,
    took three objections:
    1. That parol evidence of a will of lands, is not admissible. The will in cuestión, if destroyed, could only be supplied in the mode pointed out in the act of Assembly, relative to records that have been destroyed.
    2. That, in this case, the defendants did not offer proof of possession under an al-ledged will, but attempted to set up the will itself.
    3. That at least it was the duty of the defendants to attempt to set up (he will in Chancery, by an issue of devisavit vel non. Brent v. Doe, Gilm. 211-
    Leigh, for the appellee,
    said that Brent v. Doe, was the case of a suppressed will, which had never been admitted to record. .But the question is, whether after a will has been recorded, parol evidence can be admitted to prove its contents, in case of its destruction. The fact of its having been recorded is established by the certificate. A will is, in this respect, on the same footing as a deed, in which case, parol evidence would undoubtedly be admitted. The act of Assembly, 1 Rev. Code, 515, 510, does not repeal the general rule of evidence. The remedy there given is cumulative. If it had the effect contended for, it would ^repeal the equitable, as well as the common law, jurisdiction. The case of Bagwell v. Elliott, 2 Rand. 190, is unlike this case, because here there was a probate. Copies of records may be read in evidence. 1 Phill. Evid. 309, 310; lb. 398.
    February 17.
    
      
      Wills — Proof of Contents — Parol Evidence. — See generally, monographic note on “Wills” appended to Hughes v. Hughes. 2 Munf. 209.
      The principal case is cited with approval in Apper-son v. Dowdy, 82 Va. 779.
    
    
      
      Destruction of Records — Statute—Cumulative.—See principal case cited with approval in Corbett v, Nutt, 18 Gratt. 639.
    
   JUDGES COALTER and CABELL,

were of opinion that the judgment should be affirmed.

The PRESIDENT:

This is not the case of setting up a will by proving it before a jury. In this case, the will was regularly proved in the Court of probate, as appears by the record, and afterwards destroyed by the enemy; as was also, the book in which it was recorded. The only question is, whether its loss can be supplied by parol proof of its contents before a* jury. The rule is, that the best evidence that the nature of the case will admit of, is to be received. On this principle, I think the evidence was admissible. Though parol proof of the contents of an instrument must be generally very defective, (it being seldom possible, after a lapse of time, that the witness can recollect the precise expressions in it, or their collocation, on which its meaning often depends;) yet in aid of a long and continued possession in (he defendants, and those under whom they claim, such testimony may be resorted to. It is the best evidence the nature of the case will admit of. The provision in the 3d section of the act for the relief of persons who may be injured by (lie destruction of records, might have been resorted to, but the remedy in that provision is only cumulative, and does not deprive (he party of any pre-existing remedy, by changing the rules of evidence at the common law. I think, therefore, that the judgment ought to be affirmed.

Judgment affirmed. 
      
      Judges Carr, and Greeu. absent.
      Tbeca.se was argued before Judge Carr came into tbe court.
     