
    Alvey Reeves against Francis Booth, and others, heirs of William Reeves, deceased.
    a trifeof “"art" divide the ian* jSateoSsip rieSlnsrswhie°h foundOUHepíovtestator; ™cSgnisldth bthe existence of one, and when it could not be found, said mustbhaveedbeen whoiODdrewJ‘ aid thafptroi Jevithereof ought^to
    This was a summons in partition for a division 0f the lands of William Reeves, deceased, supposed by the summons to have died intestate. Wil^am Reeves pleaded, that the deceased left a will, by which part of the lands in question had been devised to him, and there was a description of the land claimed by him in the plea of this de- ^ {VartrJQnf iCUUdUU
    The defendant proved, on the trial, the legal an<J formal execution of a will by William Reeves, a year or two before his death, and that the same had been searched for, and could not be and then offered to prove that the deceased, on his death-bed, recognised in the fullest manner the existence of the same will, and had it searched for, and, when it could not be found, said, that he believed it must have been left with John M'-Reary, Esq., who drew it, and was one of the subscribing witnesses; and that he died persuaded of the existence of the will, and that it would be in force at his death. Mr. Justice Smith, who tried the cause, overruled the admissibility of the evidence offered, on the ground that the legal presumption was, that the will had been cancelled by the deceased in his life time, and thereby revoked; and that such presumption could not be contradicted by such evidence as was attempted to be offered. The Jury, under the charge of the Court, found a verdict for the plaintiff, and the Court, on this verdict, ordered a writ of partition to issue.
    The defendant, William C. Reeves, has moved this Court to set aside that order and verdict, and to grant a new trial. Several grounds have been taken, the purport and substance of which may be summed up in the 2d, viz. “ That the defendant ought to have been allowed, by introducing the parol evidence offered, to do away any presumption of a revocation of the will.”
   The opinion of the Court was delivered by

Mr. Justice Gantt.

The authority quoted on the trial of the case, (Shepherd’s Touchstone, p. 411,) is in point to show that the parol proof ought to have been admitted. In Phillips’ Law of Evidence, p. 378, in a note of a case taken from Caine’s Reports, 363, it is said, that where the original will is shown to be lost, the next best evidence of its contents, as in the case of a deed, is admissible. From the combined force of these authorities, and the latitude allowed in all other cases, of admitting proof of the contents of a deed, or other instrument, to be gone into, when the original is proved to have been lost, I am of opinion the evidence offered in this case ought to have been received. The declarations of William Reeves on his death-bed, expressive of his belief of the existence of the wiH and that it had been left in the hands of John M^Reary Esq. who drew it, and was a subecrib™g witness thereto, if of sound mind at the time, would leave no doubt of the fact, that he had not cancelled it himself. If proof to the extent alleged could have been adduced on the trial, it would, in my opinion, have satisfactorily evinced the right of one of the defendants to the land devised to him; and the evidence having been offered, and rejected as inadmissible, I think a new trial ought to be had.

Chimbé, Colcock, Mott, Cheves, and Johnson, J. concurred.  