
    Brent v. Dold.
    November, 1820.
    Chancery Practice-Directing issue to Try Whether Will Executed. — An issue will be directed, on satisfactory proof adduced, to try whether a will said to be lost, was ever in fact executed, and what were its provisions.
    There were cross bills. The first as by William Dold and Sarah his wife, daughter of James Brent, against Landon Brent and others, children of James Brent deceased, claiming their distributive share of James Brent’s estate; alleging, that he died intestate; and that Landon and James Brent, claimed the estate under a forged will, which they pretended was lost.
    The defendants averred a genuine will was made, and that Sarah, the wife of the plaintiff, had concealed or destroyed it.
    Many depositions were taken. Among others, that of the widow of the decedent, which was objected to. She swore, there was a will; and that it was missed, after a very short absence of her son Landon from the house, no *one being in it but herself, a deaf and dumb daughter, and her daughter Sarah.
    One Ballard swore, that he saw the original will, and believed it to be in James Brent’s hand throughout. He knew his hand.
    Another witness employed as counsel when it was to have been offered for probate, but was not, from the difficulty of proving the hand, believed it genuine, from comparison of hands. .
    Others swore, that the testator declared he never intended to give the plaintiffs any thing.
    The second bill was to set up the will. It was by Landon and Kendall Brent, who offered what they averred was a copy; and called on the plaintiffs in the first bill, to answer whether it was not a copy. They denied the genuineness of the will. Sarah denied she had concealed or destroyed it.
    The chancellor at Lynchburg dismissed the bill in the second suit; . and decreed distribution, appointed commissioners &c. in the first. Landon Brent appealed.
    
      
      Chancery Jurisdiction — Establishment of Lost Wiii —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. 385, 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 ca,se of Jireniv. Dold, (Him 211. These cases assumed tnat a court of probate in Virginia could set up a lost or destroyed will and probate the snbstance 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 by 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 of 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 court of Appeals reversed both decrees; directed the issue [which had once been directed, but the order for which was rescinded] to be reinstated, preparatory to a final decree. 
      
      Cabeli, absent.
     