
    Payne, &c., vs. Price, &c.
    APPEAL PROM PAYETTE CIRCUIT.
    A bill was filed to establish a lost will, and the will partially established. Subsequently other persons claiming to be heirs, and not parties to the first suit, filed their bill contesting the validity of the will as established. Held, that upon the trial of this second case, it was proper to admit, as evidence, the testimony found in the record, of all such witnesses as were dead or whose testimony could not be had; but not to read the bill of cxeceptions containing the testimony of witnesses who might again be examined. Singleton vs. Singleton, <§•<:., 8 B. Monroe, 368.
    The facts sufficiently appear in the opinion of the Court. Rep.
    
    
      George Robertson for appellants — ■
    The case of Singleton’s will, if any Kentucky authority were necessary, shows in a peculiarly strong light that no person, not a party on the record of the probate, can be concluded or affected by the judgment or the proceeding.
    This case is regarded decisive of that point. I will proceed to a very condensed discussion of the case, on the facts and the law, on which alone this court must and will decide it:
    1. We cannot admit that the testimony embodied 
      ír tbe bill of exceptions taken in the Circuit Court, in the former case, was admissible in this. According to the principles of the common law, it certainly would not have been. It was res inter alios acta. And the persons not parties when it was taken, having no right to cross-examine or to introduce witnesses, are, on universal principles of rational jurisprudence, not bound or affected by such ex parte evidence. Cases of probate, though ex necessitate, in one aspect, quasi in rem, do not constitute an exception. Where is there any authority to the contrary? The statute quoted by Mr. Johnson would have been altogether superfluous and delusive, had the common law rule been as he intimates. And that the object of the statute was, not to recognise an old rule, but to establish a. new one, is proved by the fact that the statute does not allow the oaths on the first probate to have the same effect as on tho probate trial, but only such as the jury may think it entitled to. Why that cautious and significant restriction? It means nothing more nor less than this — that the fact that the testamentary paper had been established, as certified by the testimony of A B and C should be some evidence before a jury, who might, according to the circumstances, give it as much weight as they might think it entitled to have. It does not mean that the facts proved by the witnesses shall be evidence before, the jury — but only the general fact that it was establish on their “oaths.” This is the clear literal import of the entire clause; and this court should not strain it into any greater, whereby an anomalous rule would be established inconsistent with general principle, analogy, and reasonable fairness, to a litigant who was a stranger to the probate.
    But this literal import is fortified by other considerations :
    1. The 11th section, after authorizing a County Court to proceed immediately and ex parte with proof of a will, and to establish the ' probate of it, directs jq to grant a certificate of such probate, which has been practically and universally interpreted as enjoining a record, and certificate of the fact of probate, and of the simple fact, also, and only, that it was proved by certain named witnesses. It then, in that connection and before closing the sentence, provides that any person interested may, within seven years, by bill, contest the validity of the will that is, as decided, require, on the appearance of all parties concerned, a re-probate. That section, as also construed by this court, did not contemplate such a remedy by any person who had contested in the County Court. In no such case of ex parte probate would the record exhibit the facts proved, but would only show the probate and on whose oath or “oaths.’’’’ Nor was the Legislature then contemplating the case of such a bill, after a decision by the Appellate Court, between contesting parties, in that court, and the appeal then must have been to that court only. It is quite plain, therefore, that when, in the 15th clause, the Legislature say that, “in all such trials by jury, the certificate of the oaths of the witnesses, at the time of the first probate, shall be admitted as evidence, to have such weight as the jury shall think it deserves.” They meant the probate provided for in the 11th section, that is, in the County Court. That what was a probate, and the “first probate,” and the only one contemplated by the 15th section. An affirmance by the Appellate Court would only decide that the probate in the County Court should not be set aside, but should stand. It certainly could not be considered the probate, much less the first probate, and consequently, if even the testimony in the Court of Appeals should be recorded, (which was never done,} the 15th section would not apply to it, because the judge of that court was not the probate — certainly not the first probate. And there is another and conclusive reason why the 15th section does not apply to the trial in this court — and that is, there never was or could be a certificate of the facts proved in the Appellate Court. All the same reasons, except the last, apply to the Circuit Court, which has subsequently acquired an intermediate appellate jurisdiction. And this exception can have no effect on the question, because it must be determined by the state of case existing when the statute was enacted; and if, then and therefore, the Legislature did not, in the 15th section, contemplate a certificate of tlie oaths of witnesses in the Court of Appeals, the appeal to the Circuit Court, under a long subsequent statute, could not be brought within ihe contemplation and purpose of the 15th section of the act of 1797.
    The 40th section of the Revised Statutes, instead of operating against our construction of the 15th section of the act of ’97, fortifies it. It authorizes not the “oaths,” but the “record of what was proved,” and depositions, and not on the “first probate” only, but “in court,” &c., and even then restricts the depositions to witnesses who could not be produced. This not only enlarges the act of ’97, and tends to show that depositions ought never to be read if the wit-. nesses could be produced.
    2. We insist that the Circuit Judge erred in overruling our 4th instruction. The opinion of the Judge on the 3rd, seems to us to be inconsistent with his decision on the 4th, and we can imagine no reason for it, but an unwillingness to instruct that the hypothetical facts were entitled, in law, to a more conclusive effect than he seemed to apprehend that this court had given to them, in Steele vs. Price and wife, 5 B. Monroe, 58. Whether, and how far, there is collision between that instruction and this court’s opinion in the above case, we will not now discuss. We respectfully urge, however, that if there be an essential collision, the opinion in said case, so far, was the first known to us, and was rendered without reference to, or apparent consideration of decisions by courts of the highest authority, directly to the contrary; and, moreover, this portion of the opinion seems to have been based on decisions which, in our humble judgment, do not authorize it. In the case of Beauchamp, this court, concluding that there had been an actual revocation by the testator himself, did not deem it necessary or proper to discuss the single effect of his knowledge of the distraction of it. This was all proper, reasonable, and in the uniform course.
    In the case of Davis vs. Davis, Eccl. Repts., there was no proof of testator’s knowledge of the loss of his will; nor w?ts there any such proof in any of the other cases relied on in the opinion, except in that, of Campbell vs. West, 3 B. Monroe. And we respectfully deny that anything in that case authorizes the deduction that this coui’t then thought or intended even to intimate that aknowledgeby a testator of the loss or distraction of his will, when he had capacity and opportunity to make another, would not, by operation of law, make him intestate at his death, unless he published another good statutory will. The court only said in that case, in effect, that even, though it may be true that a knowledge of the loss of the will without making another, may not, per se, amount to a “revocation,” yet it may lead to show that he approved or acquiesced in the loss. The point now agitated was not then considered — it was not necessaiy to consider it. This is not a question of “revocation,” but a question whether, on the facts in this case, there was any statutory will. That point was not mooted or considered in the case, in3l?. Monroe; the eourt there incidentally glanced atthe question of “revocation,,” and even as to that spoke with gx-eat care by using the wox-ds may not, instead of willwot — thereby showing that they did not, in that case, intend to decide it, as there were other gi’ounds in abundance for its decision. Moreover, in than case, it did not appear that West had capacity or time to publish airother will, and that might have been another reason why the court said “may not.”
    
    In support of the 4th instruction, I refer to the case of Calvin vs. Frazier, 4 Feel. R., 127, 1,423, 150; Trevellian vs. Trevellian, 1 lb., 64-6, note a, in Lilly vs. Lilly, 5 lb., 67; Davis vs. Davis <§• Evans, lb., 410, and Bets vs. Jackson, 6 Wendell, 178-181, 188, 193, 198, 201,202,205.
    Some of these cases and others which might be cited, sparsim, show first, that, in such a case as this, declarations by a testator, as to his will or his intentions are entitled to but little weight, and are, per se, never sufficient; and on these authorities, and the reason of the case, the Circuit Judge, instructed the jury to that effect. And, second, that knowledge of the loss of the paper, and neglect to publish another, necessarily makes the desccdent die intestate.
    
    The reason for the first doctrine is, that testators often write and show wills to please or quiet some one else, and talk about reviving cancelled wills for the like reason. And those reasons never applied more forcibly, or were illustrated more aptly, than in this case. Here the old man, under obligations to several of his kindred, and much attached to several of them, but living large portions of his time at Price’s, made often and always, when a little drunk, mock shows of peculiar affection. Why? To please and secure, without complaint, pleasant and obliging attentions to himself. Why else was he showing the will in her presence? Why did her father, who was his counselling brother, never hear of the paper? Why did he afterwards attempt or offer to sell the land, which would have revoked the will in its largest provisions? Why did he take the paper from her and assign a false reason for it — for her father says that he had not heard of any such paper, and therefore he could not have opposed her being a devisee? And, why did he say this brother-in-law, Col. J. Steele, of Woodford, that he had become offended with Price and her, and therefore had taken the will and would give them nothing? Why did he never restore the paper? Why did he not write or procure another if he desired to do do so? And why did he, when he knew the paper was destroyed, say that he would get Sam Chew to write just such another, when he himself was far more competent, and had, without aid, written the destroyed one? Only because he was yet not willing for her to know that he had destroyed the paper, or acquiesced in the loss of it.
    The reasons for the second doctrine are, to my mind, quite plain. The statute, for preventing perjury and fraud, require a published written will. No purpose to make a will — no declarations to that effect — however the accomplishment of the purpose, according to all the requisitions of the statute, will be of any avail. But nevertheless, for the same purpose of preventing fraud, if a testator had complied with the statute, and died in the belief that he had left a valid will behind him, shall not be frustrated or defrauded of his purpose by the fraudulent destruction or accidental loss of it before his death, and without his knowledge. And this is not only right and consistent with the policy of the statute, but is as far as the English courts have ever gone in admitting oral proof of wills lost or destroyed in the life time of the testators; and as far, I think, as any other court court, except in the case in 3 Ben. Monroe, has ever gone.
    But when a testator knows that his will is gone, and when he can, if he choose, supply the loss according to the statute, he is in the precise predicament in which he stood before he had published a testamentary paper. He can make a will according to the statute, and therefore must either do so or die intestate; and consequently, unless he do make one, the presumption is even that he elects to die intestate; or at the utmost, like the person who had never made one but intended' to do so, had put it off or accidentally omitted to execute his purpose by dying with a statutory will. What is the difference between the cases? And if any other doctrine be established, how completely may the statute be evaded, and its policy frustrated? Suppose A, to please a teasing wife or friend, formally publish a statutory, will intending to destroy it secretly, or, having made it in good faith, changes his mind, and secretly throws the paper in the fire — in either case the paper having been destroyed by himself — if declarations such as those proved in this case, made for the purpose of concealing his act and ultimate purpose, would nevertheless establish, in invitum, a draft of the destroyed paper, then the protective object of the statute would be frustrated; and against the will and the act of revocation, a spurious will would be falsely palmed on the dead man. And when he himself is proven to have known of the destruction, is there any more reason for establishing the contents of the destroyed paper than if it had never existed?
    In fact no such paper was ever a will; death without revocation was indespensably necessary for the legal consumation of that which had been only moved or initiated. And if the testator know of the destruction before his death, and when he could have made another if he chose, the thing thus commenced died with him and never had or could acquire the living power of a good statutory will.
    3. But if I shall be adjudged wrong in both positions— that is, the inadmissibility of the bill of exceptions, and the error in overruling the fourth instruction — X think I have good ground to hope that the court will reverse the judgment. I apprehend that the court felt great difficulty in affirming the case in 3 Ben. Monroe. I think that the opinion itself shows this; and I think that had the new facts proved by W. Payne and Col. Steele appeared in that case, the court would have reversed instead of affirming. I can't see how those facts can be gotten over; they meet all the arguments and repelí all the conclusions in the case in 3 B. Monroe. As to the effect of W. Steele’s declarations, and as to the absence of motive to change his purpose or destroy the paper, and as to the want of any proof or fact opposing the effect of those declarations. And if the proven contents of such a paper could, on any proof, be legally established as a will when the testator, as in this case, knew that it was gone, and had the means of making another, I think I am authorized to say that the case cannot be found in which it was refused on such proof as that by Col. Steele and W. Payne, both of whom are men of high standing and of unquestioned and unquestionable credibility. The witnesses can’t be doubted. They testify to the truth, and will and must be fully accredited.
    4. The case of Calvin vs. Frazier, and many other cases, show, and upon grounds of obvious propriety, that persistence in a will once published must be shown to have continued as to the whole will; otherwise destruction operates as a revocation. Now in this case there is no pretense of proof, positive or persumptive, of presistence in all the provisions of the lost paper.
    I have hopes, therefore, of final success, which I do believe is demanded by distributive justice, and by the philosophy and efficacy of our jurisprudence.
    
      Robinson fy Johnson for appellees—
    The only question of any moment is upon the correctness of the opinion of the court in admitting to be read to the jury, the statement of the evidence on the probate of this will in the Circuit Court, contained in the bill of exceptions prepared and filed in that case. It was admitted under the 15th section of the statute of wills — 2 Statute Laws of Kentucky, page 1544 — which is as follows: “In all such trials by jury the certificate of the oaths of the witnesses, at the time of the first probate, shall be admitted as evidence, to have such weight as the jury thinks it deserves.”
    The '■'•trial by jury” mentioned in this section is the trial provided for in the preceding sections, in which the contest is raised by a bill in chancery. The “certificate of the oaths of the witnesses” means the certificate or certified statement on record of the evidence on oath of the witnesses. The mere certificate that a witness was sworn, without the facts sworn ta, could not be evidence for any purpose. I presume, however, that it will not be contested by the opposite side that the word “oath” in that section does not mean the things or facts stated on oath. This word has a similar meaning in another section of the same statute, where provision is made for taking the deposition of a witness out of the state. The statement of the witness on oath or affirmation is called his “oath or affirmation,” and a “certificate of his oath or affirmation" is made evidence.
    In the argument in the Circuit Court, the attempt was made to confine the provision to the statement of the subscribing witnesses. But there is nothing in the language of the section so to confine it. In a great number of cases there are no subscribing witnesses. As in the cases of nuncupative wills, wills written altogether in the testators hand-writing, or 'wills of personal estate, or the subscribing witnesses may be dead. Nor is there any reason for confining it to subscribing witnesses. Those witnesses upon whose oaths the will was proven, are evidently the ones who are embraced by it. It was also contended that it was only intended to apply to those cases of ex parte and summary proof of a will, in which a few witnesses are examined, and whose testimony is briefly recited in the order of probate. I can see no reason for such a restriction. If an ex parte statement of a witness can be .read, it seems to me much more proper, where there was a contest, and cross-examination by .an opposing counsel. There is stronger evidence of its truth where it has been sifted by cross-examination, and there is much more confidence to be reposed in the correctness of the statement of the evidence when drawn up by counsel, corrected by opposing counsel, and finally corrected and certified by the judge and entered of record, than when stated by the clerk alone.
    The probate of a will includes the whole proof by which a will was established, and although clerks often, in their statement of the probate, recited very briefly the proof given by each witness, and may perhaps omit some who a?’e examined, yet a party would have the right of having the whole statement of the witnesses proving a will made in full, in the order of probate, and then certified by the signature of the judge to the orders. Here the full statement was made and certified by the signature of the judge, spread upon the record, and composes a part of the probate, as much as if it were recited again by the judge in the certificate or order of probate. It may be contended that only the proof of witnesses in the County Court was intended to be embraced'. When the statute of wills was enacted there was no appeal to the Circuit Court — the case was earned directly to the Court of Appeals, where the witnesses were examined in person, and probate made. If the Court of Appeals admitted the will to record that court made the probate, and it would have been competent for the party offering the will to have had the testimony stated on the record in full, and such a statement would have been a certificate of the oaths of the witnesses on the JirsL probate. In this case the first probate of will in contest was in the Circuit Court. The will established in the County Court was different from that established by the Circuit Court, and consequently it was in the Circuit Court literally, that the first probate was made. But the word “first” in that section is in contradistinction to the probate required to be made in the trial by jury, on the issue of will or no will. No matter through how many courts a will case m.ay be carried by appeal or writ of error, if the will is established finalfy, is is but one case and one probate.
    The probate of a will is in its nature a proceeding in rem, affecting and binding all persons, as much as a proceeding in personam is binding on those regularly parties to it. This conclusive cifect of a probate is mitigated in some degree by the section permitting any person interested to file a bill to contest the probate in seven years if- free of disability, or in the same time after the removal of disabilities in cases of infancy, coverture or lunacy. Under this clause a will may be contested fifty years after its probate, long after every particle of living evidence, even of hand-writing, had passed away. Were it not then for the provision of the 15th section wills could be set aside fifty years after they were fully proven, upon no other ground than that the witness had perished or his mind had become imbecile. To prevent this, the 15th section was added. Its object was to enable the devisees to protect the testimony of the probate, by causing the “oaths” or evidence of the witnesses to be certified by the court, and placed upon the record. The statute did not intend to restrict its operation to the mere formal parties contesting in the first instance. In contemplation of Jaw all persons interested are parties to a proceeding in rem, and are bound by it; and testimony taken in a proceeding in rem can regularly be read against all interested, because they are in law parties; and if depositions were taken they could be read, by the general principles of law, without this provision, hutas evidence in cases of probate is generally given orally in court, this provision allows the statements to be certified by the court, and t.he certificate read as evidence.
    In the Revised Statutes this provision is changed and in some degree restricted. All the evidence delivered orally in court and spread on the record, and all depositions taken are allowed to be read if the attendance of the witness cannot, he procured. It may be that this is a proper restriction, but it is certainly not contained in the old statute.
    It so happens that this section has never received a judicial construction. I can find no case under it. The reason is, that generally wills have been attackcd upon some pnsilioc evidence of tho contestants, upon something new and not acted upon ia the first probate. Here it was merely to have a new tribunal to act on the same evidence. To have a jury also t.o decide upon what the County Court, Circuit Court, and Court of Appeals had previously decided, with some little hope from the forgetfulness of some of the witnesses. In this case the importance of pome of the evidence arose from the very tlal.c of the facts or declarations of the testator. It is a reasonable presumption that the witnesses after ten years could mot. remember a date. Many of the witnesses were dead, removed away, and scattered so as to be very difficult to find. But for this provision the contestants would get the benefit, of all this on a re-trial There was not a witness examined who had not been examined before, showing that, it was not upon anything new or lately discovered, but simply to obtain the chances of a re-trial before another tribunal upon tlu' same evidence, reduced and diminished by death, removal, or forgetfulness.
    The instructions given by the court on behalf of the complainants arc stronger than the principles of law as laid down by this court in the case of this will The. law was then fully discussed, and must certainly be regarded as the law in this will.
    July 3.
    
   Simps,>.n

deiivired the opinion of the court.

Willian Steele, of Payette county, died in October, l84-.chil lle.-s and unmarried. Shortly thereafter!). L Price and wife offered for probate, before the County Court of that county, his last will and testament, which, as they allege, was lo.-t, and which they p -opose to establish as a lost will. Upon the testimony of witnesses the court established the will, and it was admitted to record An appeal from the sentence of tho County Court was taken to the Circuit. Court, by the. contesting heirs, and upon the trial of that appeal the will was again established, as it bad been in the County Court, except that, some modideation of its provisions was then made. The testirnony introduced upon the trial in the Circuit Court was placed upon the record by a bill of exceptions, and the case was brought up to this court, where the decision of the Circuit Court was affirmed. The opinion delivered in the case is reported in 5 B. Monroe. 58.

A bill was filed to establish a lost will, and the will partially established. Subs e q u c ntly other persons cl aiming to bo heirs, and not parties to the first suit, filed their bill contesting the validity of the will as established. Hold, that «pon the trial of this 2nd case, it was liropor to admit, as evidence, the testimony found in (lie record, of all such witnesses as were dead or whose testimony could not bo had; tint, not to read the bJl of exceptions oontmmng the tes-timony of mhnvtSagRinVbe exiimined. Singleton vs. Singleton, <$fc., 8 B. Monroe, 368.

Borne, of the heirs of William Steele, who were not parties to that controversy, afterwards instituted this suit in chancery, in the Fayette Circuit Court, contesting the validity of the will. An issue was male on this subject by the parties, on the trial of which the evidence contained in the bill of exceptions, that had been taken on the former trial in the Circuit Court, was offered on the part of Price and wife, and, although objected to by the complainants, 'was admitted by the court. The propriety of the decision ol this question by the Circuit Court, is ihc principal matter presented for our consideration, in reviewing upon this writ of error the proceedings in the court below, the decree rendered therein having been in favor of the will.

Ry the 15th section of the act of 1797, (2 Statute La-o, 1511.) it was enacted, that “In all trials by ju- ‘ ry the certificate of the oaths of the witnesses at ‘ the time of the first probate shall be admitted asev- ‘ idence, to have such weight as the jury shall think ‘ it deserves.” It was under this provision of the statute that the evidence objected to was admitted by the Circuit Court.

The statute containing this section prescribes the mode of probate in the County Court, and the manner in which any person interested' shall have a right, if that court has granted a certificate of probate, to appear within seven years afterwards and contest the validity of the will, by bill in chancery. And it is upon the trial of the issue which, under the provisions of the statute, is to be submitted to the decision of a jury, that the certificates of the oaths of the witnesses, at the time of the first probate, is to be admitted as evidence. The probate referred to, and described in the statute as the first probate, is evidently the probate in the County Court. No pro-r, ‘ J 1 bate in any other court is mentioned in the statute, an(l the object of the suit in chancery, which the statute authorizes, and in which the evidence is al- . . , . „ . . lowed to be used, is to avoid the eflect ox that probate.

In making a certificate of probate the common and uniform custom in the County Courts has been, as we believe, merely to state that the will had been proved by the oaths of certain witnesses, whose names were given. Their evidence was not stated in the certificate of probate, but only the fact that the execution of the will had been proved by them. The existence of this custom not only accounts for the peculiarity noticable in the statute, in allowing the certificate of the oaths of the witnesses to be admitted as evidence, instead of the facts proved by them at the time of the first probate, but It also demonstrates that it was the probate in the County C.ourt only that was referred to in this part of the statute.

. It is a fundamental and important principle of the law of evidence that a party shall have an opportunity to cross-examine the witness whose testimony is offered against him. This rule, which is material to the rights of every litigant, should not be departed from, except where the attainment of justice, and' the necessity of the case require the adoption of a different principle. The probate of a will, it is true, is- a proceeding quasi in retn, and in such proceedings the sentence of the court having jurisdiction is generally conclusive against all persons. This conclusive effect is, however, given to the judgment of the court, and not. to the testimony. But the probate referred to.in the statute is not conclusive on persons who are. interested in the proceeding, but who are not parties to it; they are allowed-to appear within seven years thereafter and contest the validity of the will, notwithstanding such probate. The sentence of the court not being conclusive on them, the testimony given upon the probate can have such effect only, upon a subsequent trial, as is imparted to it by the statute. And as the statute evidently refers alone to the probate in the County Court; and as the admission of testimony which was given upon a former proceeding, to which the persons to be affected ty it were not parties, is in direct violation of an important legal principle, this provision of the statute should not be enlarged, by construction, beyond its plain and natural import. It only embraces such evidence as shall be given in the County Court, up-the probate therein made, and not such as might be given in any other court, and no other should be admitted under the authority of the statute.

But as there is an identity of interest between the parties who are now contesting, and the parties who have heretofore contested the validity of the will, there is an evident propriety in imparting to the testimony delivered upon the former trial in the Circuit Court, the character of secondary evidence, and authorizing it to be used as such where any of the witnesses then examined cannot bo produced on the present trial. This was the rule prescribed by this court in the case of Singleton vs. Singleton, &c., 8 B. Monroe, 368, which was an analogous case. It is a rule necessary to prevent injustice, and peculiarly appropriate in such a proceeding as this. It has also the sanction of legislative approbation, having been made a statutory rule by the Revised Statutes, (page 700.) The statutory rule, it is true, does not apply in this case, which was pending at the time of its adoption, but it shows the opinion of the Legislature with respect to the justness and propriety of the. rule itself.

The questions of law involved in the instructions given by the court to the jury, were discussed and decided by this court in the opinion delivered by it in 5 B. Monroe, 58. The law was expounded by the court below in substantial conformity with the principles settled in that opinion. The doctrines therein asserted we think are correct, and are not disposed to depart from them.

But for the error committed by the court, in admitting the contents of the bill of exceptions, which was taken upon the trial in Ihe Circuit, Co.urt as evidence upon the trial in this ease, the decree will have to be reversed, and a new trial awarded.

Wherefore, the dperee is reversed, and cause remanded for a new trial, and further proceedings in conformity with this opinion.  