
    William Thompson et al. v. Elisha Applewhite.
    From Wayne*
    A Plaintiff who claims under a will, which is not admitted in the art-swer, must produce it, or a copy of it at the hearing, or account fot its loss.
    One who claims- under a will which is not established, must have . all the persons interested to contest it before the Court.
    The bill charged, that the Defendant, in the year 1807= made an entry with the entry-taker of Wayne county ; that before a grant issued tiiereon, he agreed to convey the, land thus entered to his father John Applewhite, and executed a bond, by which he bound himself to have the entry surveyed, and after obtaining a grant, to convey ittuhis father; that the Defendant had perfected his title to the land, but in consequence of the father’s death, the Defendant never had conveyed the land according to his agreement. That John Applewhite by his will devise,<1 the land above mentioned to his son Isaac, who was also dead, leaving the Plaintiffs his heirs at law ; and that the Defendant had refused to convey the land either to Isaac or the Plaintiffs. The prayer was for a conveyance to the Plaintiffs.
    The Defendant admitted the entry as charged in the bill, and that a grant had issued to him ; but denied the execution of the bond to his father, as alleged in the bill» He admitted, that long after the issuing of the grant, his father being then very old and on his death bed. Isaac •»the ancestor of the Plaintiffs proposed to him, the Defendant, that as the land had always been occupied by their father, and was supposed to have formed a part of his home plantation, that the Defendant should execute a bond to make their father a title thereto $ that for the sake of preserving the peace of the family, the Defendant did then execute a bond to his father, with a condition to make a title, not to his father, but to. his brother Isaac, Hut he averred, that no other consideration passed to him, upon executing this hood; ami shortly thereafter it was by the father, with the consent o¡‘Isaac, cancelled. The Defendant admitted the devise of his¡ fa-iher to Isaac of the home plantation, but denied that the land in dispute formed any pari thereof, or that it would have passed by the will, supposing the father to have had title thereto, lie averred, that John, the father, left two other children besides the Plaintiff and himself, and contended, that if the father had title thereto, the Plaintiffs were entitled to only one fourth thereof, as it did not pass under the will of the father.
    A replication was taken to the answer, and several witnesses were examined, whose depositions were read at the hearing. Eat títere was no copy of the will of John, sise father, filed as an exhibit 5 it was said to have been lost after probate, but before it was recorded — -hut there was no proof of this fact.
    
      Mordemi, with whom was Bevereux, for the Plaintiff.
    
      Gaston, for the Defendant.
   Henderson, Chief-Justice.

— Proof of the devise to Isaac is indispensable, to support this bill. If the fact be, as charged in the bill, that the condition of the bond was to make title to the father, most certainly he who claims as his devisee, must show a devise. If it be, as insisted on in the answer, that the condition was to make iiile to Isaac, the circumstances attending its execution prove most clearly, that such condition was introduced as ancillary to the will. So far therefore the condition was testamentary, and fell to the ground, either by revocation of the will, or if the will was riot executed to pass real estate, or by any other cause which render» od the will inoperative. But the weight of evidence is in favor of the case made in the bill. Neither the will, nor a copy is offered in evidence; but the answer ad= mits a devise to Isaac of the home plantation, but denies that the lauds in question are embraced by that deserip- . , , . 1 ., . . Won, and there is no evidence to prove that they are» rpjie deposition of one witness, taken evidently to another point, renders it somewhat probable that they are a part of, or adjoin the home plantation. But it by no means proves it satisfactorily. The depositions of the other witnesses state, that by the will the lands were devised to Isaac. This is giving parol evidence of the contents of a paper without proving its loss, or that it ¡ beyond the reach of the party offering it. And besides, they do not state the words ojr substance of the devise.— The bill must therefore be dismissed, for want of proof of the fact of the devise.

The hill is objectionable for want of parties, the heirs of the father; as they are interested in contesting the devise. For if not devised, the lands descend to all the heirs. .The bill is silent, who are the heirs, and therefore does not make a case proper for a decree. But the answer states expressly, that there, are two other heirs, not before the Court. If the case made had been supported by the evidence, this defect might have been aided by an amendment. But we cannot get over the defect in the proof.

Per Curiam.

— Let the bill be dismissed with costs.hut without prejudice.  