
    *Banks and Others v. Booth.
    Decided, April 16th, 1819.
    i. Chancery Practice — Effect of Paper Purporting: to Be Will — Issue.—Notwithstanding apaper purporting tobe a Will, be proved in a suit in Chancery, to have been wholly written and subscribed by the supposed testator; yet it upon the evidence, (there being no attesting witness,) it be doubtful whether, at the time he wrote it. he was in a, proper state of mind to make a testament; whether it was seriously intended by him as such; or, if so. whether it has not been subsequently nullified, by the republication of a former Will, a revocation of it, or otherwise; the Court ought - to direct issues to ascertain such facts, before any decision of the cause.
    Upon a Bill filed in the Superior Court of Chancery for the Williamsburg District, in behalf of Harriet A. Booth, an infant, by George W. Booth her guardian, against William Banks, James Banks, Nathaniel Hawkins and Elizabeth his wife, children of Andrew Banks .deceased, for the purpose of perpetuating the testimony of Witnesses in relation to, and establishing as the last Will of the said decedent, a paper found in his desk after his death, purporting to be such Will; by which he devised and bequeathed a tract of land, with the slaves, stock and other property thereon, to the said Harriet A. Booth; and another tract of land with slaves, &c., to a certain Elizabeth Bingham ; which paper was concealed and suppressed by the defendants, or some of them; it appeared from the Answers and Depositions, that such a paper as that prescribed in the Bill, was in existence shortly after the death of the said Andrew Banks, and in the possession of the defendants; that it was in the handwriting, and signed with the name of the said Andrew Banks, but not attested by any witness. It gave all his property to the said Harriet A. Booth and Elizabeth Bingham, leaving nothing to his children. Erom his habits of intoxication, and other circumstances, it appeared very probable that he was not in his senses when he wrote it. And if he was, it was doubtful, from the testimony, whether he seriously intended that writing as a Will, or only to alarm his son James Banks, (with whom he had a quarrel about that time,) by'letting him see what it was in his power to do. He was afterwards reconciled to James, and declared it was his wish that his property should be equally distributed among his children after his death. In his last illness, he said nothing about that paper, or the making a new Will; but a witness was of opinion that he was then incapable of making one. A previous Will, also in the hand-writing of the said Andrew Banks, and regularly attested, bearing ■ *date in the year 1802, was found in the same Desk, with the said paper dated November 25th 1807. A witness swore that, “just before Christmas in 1807, he was over in James City; and, as he was going down to the river to go over, the deponent was with him and his son James Banks, when Andrew Banks observed he had made a just Will; that was, he had made his children all equal, as he had done previous to his coming to that place to reside, that is, that he had given most to such of his children as had done most for him; and had deposited the Will in a friend’s hands.”
    The Chancellor decreed, that the Will stated in the Bill to have been made by Andrew Banks, be established as his true last Will and Testament; and that accounts be taken of the slaves and other property thereby bequeathed to the plaintiff, and of the hires and profits thereof, &c. From which decree, the defendants appealed.
    
      
       Chancery Jurisdiction — Establishment of Lost Will —Directing issue. — In Dower v. Seeds, 28 W. Va. 153, it is said: “In Lemon v. Reynolds, 5'Munf. 552, decided in April, 1817, it was held, that a county court or a court of probate can set up and establish a will and have the same recorded. In Banks v. Booth, 6 Munf. 885, it was decided, that a court of chancery can set up and establish a lost or destroyed will; and that in such a case issue out of chancery should be directed to ascertain facts essential to a just decision of the cause. This case was decided in April, 1819. The same was decided in March 1821, in the case of Brent v. Dold, Gilm. 211. These cases assumed that a court of probate in Virginia could set up a lost or destroyed will an d probate the substance of it as proved by witnesses and have the will thus established recorded as the last will of the deceased; and that the same could be done by a court of chancery in effect b* its setting up and establishing- the will, which had been lost or destroyed; but these cases do not show, what should be the form of a decree of a court of chancery establishing and setting up such a will. Though no reasons are assigned for these decisions, yet, as we have seen, they are supported both by reason and the weight oi authority and must be regarded as binding authority on us, unless the law has been changed either by constitutional provisions or changes in the statute law.”
      The prin cipal case is also cited in French v. French. 14 W. Va. 477; Wise v. Lamb. 9 Gratt. 303.
      See further, monographic note on "Issue Out of Chancery” appended toLavell v. Gold. 25Gratt. 473.
    
   JUDGE ROANE

pronounced the Court’s Opinion as follows:—

Upon the proofs in this case, taken in connexion with the suppression of the Will of 25th Nov. 1807, by the appellants, or some of them, which, in this particular, warrants the strongest presumption against them, we have no doubt but that that Will was written by A. Banks the supposed testator, and contained a clause such as that stated in the Bill. It is not certainly known to us, however, whether, at the time he wrote it, he was in a proper state of mind to make a testament; whether it was seriously intended by him as and for his last will and testament; nor, if so, whether it has been subsequently nullified by him by the republication of a former will, a revocation of it, or otherwise. These enquiries are essential to a just decision of the cause, and are to be made under issues directed by the Court of Chancery. For the purpose of making them, the decree is to be reversed, with costs, and the cause remanded to the Court of Chancery to have the issue instituted. On the trial of these issues, the Court of Chancery shall cause the two wills mentioned in the proceedings to be produced, if *practicable; and,' on the report of the issues, decree accordingly.

Some of the Court, also, verbally, suggested to the Counsel, the consideration of the propriety of making Miss Bingham a party to the controversy..  