
    Lemon v. Reynolds Adm’r. of Holmes.
    Decided April 3d, 1817.
    1. Suit for Freedom — Right to Contest Validity of Will Therein. — in a suit for Freedom, the validity of a Will, under which the plaintiff claims, ought not to he questioned; the same.(or a copy thereof, the original being destroyed.) having been admitted to record, as and for the last Will of the Testator, by the proper Court, whose Judgment remains, unappealed from and the validity of such Will not be contested in Equity.
    See 1 R. G. ch. 92, sect. 11; Ford v. Gardner and others, 1 H. and M. 72.
    This was an action for Ereedom, in behalf of the Appellant, against the Appellee, in the County Court of Kanawha.
    The Jury found a special Verdict, in substance as follows ; that Joseph Holmes was, in his life time, and until his death, the owner and proprietor of the plaintiff ; that the said Joseph, on or about- the 18th of May, in the year 1811, at the County of Kanawha aforesaid, being of full age, and of sound ^disposing mind, signed, sealed and published a paper writing purporting to be his last Will and Testament, which was executed and witnessed in the manner and form prescribed by law for executing and witnessing last Wills and Testaments, and contained a clause to the following effect; “Item, it is my Will and desire that my negro man Lemon shall have and enjoy his freedom after my death ; and, for his attention and friendship during my illness, that he shall have my sorrel horse, with a saddle and bridle, and ten dollars in cash that the plaintiff was the same negro man Lemon therein mentioned : that the said paper writing was destroyed in the life time of the said Joseph by inadvertency, without his knowledge or participation, and against his wish : that, after its destruction, he knew that the same was so destroyed, and expressed his regret that it had been done, and requested his friend, Col. A. Donnally, jr. to write his Will over again ; that he did not execute any writing, or express any wish that the provisions of the said paper writing, so destroyed as aforesaid, should not be carried into effect, or that the same should be revoked or annulled, or in any manner confirming the destruction thereof : that he departed this life before the institution of this suit; and that no paper was signed, sealed or published by him as his last Will and Testament, or as a Codicil thereto, other than the one so destroyed : that, on the 8th day of October 1811, Administration of his Goods, Chattels, &c. with the Will annexed, was in due form of law committed to the defendant; that, on the thirteenth day of August, 1811, a Writing, purporting to be a Copy of the last Will and Testament of the said Joseph Holmes was presented to the County Court of Kanawha, and, with the testimony in support thereof was committed to Record, in haec verba : from which it appeared, that the clause before recited, in favour of Lemon, was contained therein ; but, in one important respect, according to the testimony of three witnesses, the copy differed from the original; the whole of the residue of the Testator’s estate, both real and personal, (after some small specific legacies, and paying all his just debts and funeral expences.) being devised to his sister, Elizabeth M’Guire, according to the copy; but, according to the original, one half only to her, and ’'the other half to a Mrs. Conrad : that the defendant John Reynolds, Administrator as aforesaid, forcibly took possession of the plaintiff, as of the goods and chattels of the said Joseph Holmes, deceased, and detained him in slavery.
    Upon this Special Verdict, the County Court gave Judgment for the plaintiff; but, upon an Appeal to the Superior Court of Law, the same was reversed, and Judgment entered for the defendant; whereupon the plaintiff appealed to this Court.
    Leigh, for the Appellant,
    cited the Act of 1792, (1 R. C. ch. 92, § 2,) also 7 Bac. 3S0, citing 1 Eq. Cas. abr. 409,: Hyde v. Hyde; and Cowp. 52, Burtonshaw v. Gilbert, to shew that the original Will in this case could not be considered as revoked, but in full force. !
    No Counsel appeared for the Appellee.
    
      
       Wills — Jurisdiction to Establish. — 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 ch ancery 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 jnst decision of the cause. This case was decided m April, 1819. The same was decided in March, 1821, in the case of Brent v. Bold. Gilmer 211. These cases assumed that a court of probate in Virginia could set up a lost or destroyed will and 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 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 np 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. ”
      See further, monographic note on “Wills” appended to Hughes v. Hughes, 2 Munf. 209.
      The principal case is also cited in Reid y. Blackstone, 14 Gratt. 867.
    
   April 3d, 1817.

JUDGE ROANE

pronounced the Court’s opinion.

The Cooy of the Will made part of the special Verdict, in this case ; having been received and admitted to Record by the proper Court, as and for the last Will of Joseph Holmes ; and that Copy containing a clause, (as found by the Jury and spread upon the Verdict as part of the proceedings of the said Court,) which entitles the Appellant to recover his freedom, the Court is of opinion to reverse the Judgment of the Superior Court, and affirm that of the County Court.  