
    In Bank.
    Dec. Term, 1846.
    
    Michael Morningstar and others vs. Leonard Selby and others.
    A Court of Chancery cannot entertain jurisdiction to set up and establish a lost or destroyed last will and testament.
    The jurisdiction is with the Courts of Common Pleas, or Probate Courts.
    This is a case in Chancery,- reserved in the County of Warren.
    The object of the bill, in this case, was to establish a spoliated will, alledged to have been made by John George Morning-star, deceased, who departed this life April 23, 1844. , The case is very voluminous, much testimony having been taken as to whether the deceased, in fact, made a will; if so, what were its provisions, and whether it was revoked, lost or destroyed; but as the Court, in deciding the case, only passed upon the question of jurisdiction, it is not deemed necessary to furnish an abstract.
    For the same reason, only so much of the arguments of counsel as relates to that question, are inserted.
    
      T. Ewing, for Complainants.
    I confine myself, in this case, to the question of jurisdiction, and contend —
    First: That a will, lost or destroyed, may be set up by the Court of Common Pleas on bill in chancery.
    1. It may be set up. It is not known to our system of jurisprudence, that a wrongdoer, by the spoliation of a paper, may destroy the title of another and vest his estate in himself. Our courts will not suffer a man to acquire property in the purse which he has got by robbery, or the horse which he has stolen; much less could it be suffered, that, by destroying the more legal evidence of title belonging to another, he should vest that title in himself; that, if he stole a will and destroyed it, he should thereby acquire title to the land passed by that will. In the case of larceny or robbery, the purse or the horse has, by the act, passed into the possession of the felon; he lacks only title. In case of the spoliated will, the spoliator has not one-half this meritorious interest; he has neither title nor possession, unless the law will give him them as a consequence of his act. If this were so, a will might be snatched from the hand of a witness while on the stand proving its execution — it might be burnt in the presence of the court, and thus transfer the title of land of the devisee to himself, as heir, and he might come in next day and set up his title in that very court. Probate of a will lost or destroyed, is taken by the Ecclesiastical Courts in England. See cases in Defendant’s Brief.
    I conclude, therefore, that a spoliated or lost will may be set up. The executors and devisees are not without a remedy.
    2. And it may be done in the Court of Common Pleas.
    ■ Constitution of Ohio, art. 3, sec. 5.-— “ The Court of Com- ‘ mon Pleas, in each county, shall have jurisdiction of all pro- ‘ bate and testamentary matters.” Not sole jurisdiction or all jurisdiction of such matters, but jurisdiction of all such matters. Here is a full grant of power to the Common Pleas of jurisdiction. One branch of that jurisdiction was to set up a lost will, and take and present proof of it. That power, then, was conferred upon the Court of Common Pleas. There is nothing here directing the mode of proceeding to be adopted by that Court, or giving or taking away an appeal to the Supreme Court.
    But the lost or spoliated will may be proved in the Common Pleas.
    3. It may be done by bill in -chancery. The first nineteen sections of the “ act relating to wills,” which provide for the probate, filing and registry of wills, suppose the will to be present in court, and it is not perceived that any provision is to be found therein for the probate of a lost or spoliated will; and the 33d section provides, “ that no will shall be effectual topase < real or personal estate, unless it shall have been duly admitted * to probate or record, as provided in this act.” Here lies the difficulty. Let us see if it is insuperable.
    Our Court has repeatedly holden, that the estate passes by the will on death of the testator, and that a suit brought by a devisee of a foreign will, before record, or of a domestic will before probate, can be sustained if there be registry or probate before trial or hearing of the cause, but it is not effectual until it has had this judicial sanction.
    This provision touches the legal character of the instrument and its effect in a court of law. ' It cannot apply to those cases where fraud or accident, which properly give jurisdiction to a court of equity, are concerned. The negative language is not nearly so strong as that in the 4th section of the Statute of Frauds. And I need not suggest to your Honors, what a multitude of cases are, by uniform construction, taken out of the provisions of that statute. The restriction in the 33d section of the act relating to wills, is analagous to the statute of frauds, and, like it, intended as a prevention, and, like that, it will not be so construed as to countenance or encourage fraud. Courts will not suffer the loss or destruction of a will to defeat the estate of the devisee, but they will require, to give effect to the will, some legal sanction, by the appropriate tribunal, equivaalent to probate in notoriety and solemnity. Every thing should be done as far as, under the circumstances, it may, in pursuance of the provisions of the statute. The Court of Common Pleas has jurisdiction of all probate and testamentary matters. It has, also, common law and chancery jurisdiction. It is the forum designated by the constitution, in which these proceedings should have their initiation. But what should be the form of proceedings ? That is the only question. The proper forum has been chosen ; now for the form of proceeding.
    The law has made no provision in the case of a lost or spoliated will. There is no “ plain, adequate and complete remedy at lawthe jurisdiction, therefore, belongs to the chancei7 s^e ^lat court.
    It is the better and the more convenient mode of procedure. The ordinary probate of a will is not a subject of contest — there are no parties before the court — the witnesses, therefore, few in number, and to a single point, (the execution of the will,) are examined in open court, and their testimony reduced to writing. But where the points in question become numerous, as in the case of a spoliated will, involving the inquiry not only of its due execution, but its destruction, its contents, and the fact whether it was destroyed by the testator, or with his consent, it would be inconvenient to make the court perform the office of a master in examining witnesses and taking down testimony. And besides, such a proceeding ought to be inter parties. The heir should have an opportunity to defend; and the decision ought to have the solemnity of a judgment or decree — it should settle the question between the parties. Such is not the case on application to admit to probate ; Chapman’s will, 6 Ohio Rep. 148; Hunter’s will, 6 Ohio Rep. 449; but such would be the effect of a proceeding in chancery.
    The Legislature has referred contested wills to the chancery side of the court. In case of contest, the testamentary matter is settled there. The will is destroyed, or made valid — its probate annulled or confirmed, according to the decree of that court on issue found. Why, then, in a case of inevitable' contest, of contest ab initio, where the will cannot be produced and proved agreeably to the statute, why resort to the semblance of a probate where it does not tend to protect the rights or guard the interests of any one, and where it will inevitably be a vain and idle procedure ? The question, devisavit vel non, must be asked and answered in chancery. Why, then, should the same tribunal, the true forum for the determination of all the questions which arise, commence and carry on its investigation in an irregular form, when its action in such form could have no other effect than shifting the burden of proof on the final trial of the issue between the parties ? It appears to me that the proceeding should be in chancery, and that the tribunal charged with jurisdiction of the case, has chosen the most appropriate form of procedure.
    We also insist that the Supreme Court has jurisdiction on an appeal from a decree of the Common Pleas, setting up or refusing to set up such will. If the Supreme Court have no jurisdiction of the subject matter, then the appeal must be dismissed — but not the bill. To this we make .no particular objection, but at the same time suppose that there is no defect of jurisdiction.
    The Common Pleas has jurisdiction of all probate and testamentary matters. That does not mean sole or exclusive jurisdiction. The 1st section of the 3d article of the Constitution provides that, “ the Supreme Court shall have original * and appellate jurisdiction in such cases as shall be directed by ‘ law;” and the law (Swan’s Stat. p. 713, sec. 52,) provides that a party may “ appeal from any final sentence or decree pronounced and made in any cause or suit in chancery.” This provision embraces the present case.
    
      J. R. Sivan, J. W. Andrews, J. Milton Williams, and Bebb &f Campbell, for the Defendants. ,;
    All original proceedings of a judicial kind, relating to probate and testamentary matters, the proof, establishment, recording, &c., of wills, belong exclusively to the Court of Common Pleas, and are regulated by statute.
    Upon this subject, little light can be gathered from English decisions; for the only Court of Probate in England is the Ecclesiastical Court, and that court has no jurisdiction over a will devising real estate. Its jurisdiction is confined exclusively to wills, or such parts of wills as dispose of goods and chattels. As to real estate, devised in the same, or any other will, its probate is no evidence of the due execution of the will.— Hence, in England, when a will is offered in evidence, in an action at law, to prove a devise of lands, the will must be Proved in open court to the jury, before it will be received; and probate thereof duly authenticated, from the Ecclesiastical Court,- will avail nothing. There is, then, no court of probate in England for wills, devising real estate; such wills are established, or defeated by an action of ejectment, or other action at law, in which the question of title is involved. If there have been a multiplicity of suits establishing the will at law, the English chancellor will entertain a bill to quiet the title, after ordering an issue at law, &c. It will be perceived, that the mixed and confused jurisdiction of the Ecclesiastical courts, courts of law and courts of chancery, in England, in regard to probate and testamentary matters, can have but little, if any thing, to do with our system, as established by the constitution and statutes of Ohio. We are unwilling, however, to let the law — the English law, as quoted by the counsel on the other side, from Story’s Equity Jurisprudence — pass, without, at the same time, making some farther quotations from the same work.
    2 Story’s Equity Jurisp. 380, sec. 1445: “ It has already c been stated, in another part of these commentaries, that the c proper jurisdiction, as to the validity of last wills and testac ments, belongs to other tribunals. Where a will respects ‘ personal estate, it belongs to the Ecclesiastical Court; and ‘ where it respects real estate, it belongs to the courts of com- { mon law. But, although this is regularly true, and courts of c equity will not, in an adversary suit, entertain jurisdiction to e determine the validity of a will, yet, whenever a will comes * before them, as an incident in a cause, they necessarily enter-c tain jurisdiction, to some extent, over the subject; and if the c validity of the will is admitted by the parties, or if it is other- ‘ wise established, by the proper modes of proof, they act upon ‘ it to the fullest extent. If either of the parties should after-c wards bring a new suit, to contest the determination of the e validity of the will so proved, the court of equity, which has ‘ so determined it, would certainly grant a perpetual injunc» ‘ tion.”
    
      Story’s Equity Jurisp. 832, note to sec. 1447: “ The heirs c 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 obsta- ‘ cles 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 1 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 altération, &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 hot 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 w'hich, 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.”
    
      The syllabus of the reporter in this case, is thus: “ A court £ of equity has no jurisdiction to declare what is, or is not, a ‘ 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 stringént 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. in, 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:
    t! 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 ?
    
      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 c 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.”
    
      So, in Graham, v. O’Fallen, 3 Miss. 507: “ A will being ‘ lost or destroyed, probate may be granted upon a copy; also, c where there is no copy, the contents of the will may be pro- ‘ ven, and the will established by the subscribing witnesses, or ‘ others who have read it.”
    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 ir, 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 pro- ‘ ved otherwise than by a decree of the probate court.”
    
      Probate in the Common Pleas being conclusive, (Bailey v. 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.
    The first point made by defendants’ counsel, is, that this Court has' no jurisdiction of the cause. Without waiving the 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 At~ kyns, 360; 1 Bay S. C.- Rep. 464 ; Legare v. Ashe, 6 Wend. 173 ; 7 Dana, 90; 11 Wendell, 227; 2 Howard’s U. S. Rep. 619, and numerous other authorities.
    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 wdlls 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 ail other than probate courts from the determination of testamentary matters, is manifest. If they 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. 4*29 ? 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 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 probate7 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 and expense has been incurred in this case unnecessarily, 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 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 
      ‘ legatees and devisees were also completely vested at the in- { slant 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, c ancient and modern, all agree. The rights and interests of ‘ the legatees ahd" 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 'loill.”
    
    Article 1637 of the civil code1 of Louisiana, declares: that “ no testament- can have effect, unless it has been presented to -the judge of,the parish in which ‘ihe 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 shallthe proof-bp made? We ask the attention of the Court1 to the authorities ón 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 pot assumed on the other side, we dismiss' this., branch of the subject with, this remark r that jurisdiction is also claimed , under another rule — that of 'advancement/arid'recognition-of title, disposition by parol possession and improvements by complainánts, that the testator would have been, and defendants now' are.estopped, in; eqdity, from setting up á 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 sáy that a Court óf Probate, has; ,in which eveht,.(if, in'the-opinion of the Court, wé have not made á satisfactory case for a-decree on the other branch of the case, we ask. the 'cause to be continued until the application shall be made to the Court of Probate to prove it. We do this for the reas'on, that should such application fail, which, we do not apprehend; this Court may ultimately settle the rights of complainants, as to improvements, &c. -
    
      
       Our statute attaches no penalty to the malicious destruction of a will — it is casus omissus.
    
   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 ha? 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 tó establish such lost of spoliated will. Upon this question of .jurisdiction, we necessarily have to recur t'o the original source- 'Of all oür pow(er — the constitution of the Staté. Article 3, section 1, vests, the judipial power of the State,£< both as- to matters of law and Equity,” ££ in- a Supreme Court, in Courts of:Common Plea's for £ each county, in justices of' the peace, and insuch other courts £ ,as the Legisláture niay, from- time to time, establish.” -By section 2, the Supreme Court “ has original and appellate jurisdic- tion, - 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) £<i have common £ law and chancery jurisdiction in all-cáses 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 legislation consistent with them have not conferred it, we shall be forced to say, it does not exist.

That the fifth section authorizes a 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 á 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 pro- £ bate 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 and taka the proof of -wills; grant letters testamentary thereon, ‘ an<^ to ^ear an<^ determine • all causes of probate. and c testamentary,nature.”’ All the chancery powers of that-court are granted in othér 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 iii which the proof is prescribed, the modeof proceeding, and'the effeet of the record.. And in Swan’s Stat/sec. 33, p-996, it is de'dared, 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 par-tie's,.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, exeept 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 some1 of the difficulties that- might flow from entertaining.this bill. . [

1.'- A decree in chancery is nbt 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, re-. pealed by', the decree, ' The decree- and the statute would speak 'different language on the’-same subject. One would' say,' the will-of 'MorningjStar. 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 oi-against the-validity of the supposed lost-'wifi, a real and different-will should be produced ?. Is the-litigation ' , a bar to its probate-? Does it oust the Courtof Common -Pleas <of jurisdiction ? Might not the will' then be'called for, be produced-, 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.-pr.obate.

But.it is urged, that the. spoliation of the supposed will, with intent tp destroy the alledged d'evises to complainants-, affords grounds of equity jurisdiction — that the power to establish -spoliated, suppressed'.and-destroyed vyills-wás one of .the powers known to courts of chanc.ery 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.-''See. 63' of their statute’ (Revised code, voi. 5, p. 66, j confers ;upon the court of chancery the same power to take the proof of, the. execution .and va- • lidity of a lost or-destroyed'will 'arid- to .establish the same, as in the case of lost deeds; and the constitution of the Slate 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 hi the chancery courts, otherwise we should'have seen' no such specific grant of'juris-' ' •diction. '• .. ' y, '.•■•

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-poweiy 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 á. disco'yery was;, ordered--'in."that Case,' ás -it would-s.eem, ‘for no other, purpose thaa.jtp aid th'fe'appropriate, probate tribunal' in establishing the lost will. If we have correctly comprehended the subject, there is no ground to sustain this bill. It is not framed for the purpose of a discovery, in aid of a probate court. Its only basis of relief is under a supposed title, which cannot be made manifest in this Court without showing the will itself, duly admitted to probate, which it seeks to have established, and which cannot here ■ be established; and, should it ever become a matter of probate, there will then be no cause for sustaining the bill, inasmuch as the remedy at law in that event will be plain and adequate.

Again, it is further said, that the remedy must be in chancery, because the statute has pointed out no mode of proving a spoliated will; and we are asked, if there can be so great a wrong as the destruction of a paper divesting another of title,, and vesting it in the fraudulent spoliator, without a remedy ? In general, it may be said, that there is no wrong' without a remedy; and were we to say that this case' was not without a remedy, it would not follow that this is that remedy. It may be that the Court of Common Pleas, by the grant of power in the third article, section 5, of the constitution, is clothed with, general pbwers adequate to give the appropriate relief; if not, the Legislature can clothe those courts with ample power. It is sufficient for us to say that, in either event, this Court will not have appellate jurisdiction, as from a Court of Probate, to revise their decision. Nor till after the will shall have been proved, approved and admitted to record, can this Court act in any manner touching or concerning its validity, and then only in the manner prescribed by statute. That mode of proceeding will not -have-for its object, to establish the will, but to determine whether it may, or may not, have been improperly established by a competent Court.

As the- question' should have boon presented by demurrer to the bill, the expense incurred by respondents has been made in their own wrong.

Bill Dismissed.

Each party to pay their own casts.  