
    *Elizabeth Idley, appellant, and George Bowen and Ann Eliza his wife, and Mary Ann Idley, an infant, by G. Bowen, her next friend respondents.
    
    A decretal order of a court of chancery, directing an issue of devisavit vel non, will not be reversed, where the proofs taken leave the question of the competency of a testator to make a will involved in doubt; a party seeking to reverse such. order cannot succeed, unless upon the evidence taken in the court of chancery, he was clearly entitled to a decree in his favor.
    A will duly executed, destroyed in the lifetime of the testator, without his authority, may be established upon satisfactory evidence of its contents, and of its having been so destroyed; the presumption of law is that a will proved to have had existence, and not found at the death of the testator, was destroyed animo rcvocandi, but a party seeking to establish such will may repel such presumption, and show that it was improperly destroyed; and a decretal order for a feigned issue, directing an inquiry as of the revocation of such will, will not be reversed, although it also direct an inquiry as to the competency of the testator to make the will, notwithstanding that in relation to such competency there is no dispute.
    A party aggrieved by one branch of a decree, does not thereby acquire a right to call in question another portion thereof, which has no bearing or effect upon his rights or interests ; he can appeal only from such parts of the decree as affect him.
    A step'-mother, against whom a bill in chancery is filed by her son-in-law in the name of himself and wife, and of an infant sister of his wife, he appearing as the prochein ami of the infant, to annul a last will and testament, and establish a previous will made by the same testator, cannot, on an appeal from a decree in equity, object that the infant is improperly made a complainant in the cause, and that placing her in that position is injurious to her rights, where such step-mother is not the guardian of the infant.
    A court of chancery will, on its own motion, or upon petition, direct a reference to ascertain whether a suit prosecuted for an infant by a prochein ami is for the interest of the infant, and whether the infant is properly placed in the cause.
    Appeal from chancery. The respondents filed a bill in chancery to annul a will of real and personal estate, made by Joseph Idley, on the 3d May, 1825, and to establish a previous will made by him on the 3d April, 1825, which had been destroyed. Joseph Idley, the testator, had two children, viz : Ann Eliza, the wife of George Bowen, and Mary Ann, the infant, who, at the time of the death of her father, it seems, was only six years old. The mother of these children died in 1821, and in 1823 their father intermarried with the appellant. *On the 3d April, 1825, Joseph Idley made his will, by which he gave the whole of his real and personal estate (with some exceptions as to the personalty) to the appellant, during her life, and after her death, the real estate to his two daughters, to be equally divided between them, charging the share of Ann Eliza with an advance of $2000, made to her on her marriage. The appellant also was charged with the maintenance and education of Mary Ann, the infant daughter. About two or three weeks, after-wards, the appellant, by the direction of the testator and in his presence, burnt the will thus made, and on the 3d May, 1825, a new will was drawn by the direction of the testator, and executed in due form, whereby, as in the former will, the whole of his estate, real and personal, was given to the appellant, during her natural life ; but the remainder of the real estate was given to the infant, Mary Ann, solely, and no provision whatever was made for the daughter Ann Eliza. In 1827, the respondents filed their bill, alleging that in April, 1825, the testator was laboring under disease, which became very painful, and on the 3d May, 1825, his health had become so much impaired, and his pain and distress so great, as entirely to unfit him for business ; that on the last mentioned day, the will of 3d April, 1825, was cancelled or destroyed by the appellant, without the direction, desire, consent or knowledge of the testator ; that at the time of the making of the will of the 3d May, 1825, the testator was incompetent to the making of a valid will, and that the will of that date was not executed of his own motion and free will, but by the suggestion and contrivance of the appellant. The appellant, in her answer, acknowledged the making of the will of April, 1825, and that it had been destroyed by her, but averred that it was so destroyed by the absolute direction of her husband, and in his presence; and alleged that at the time of the making of the will of May, 1825, the testator was of sound and disposing mind and memory, and competent to the making of his last will and testament. The appellant, in her answer, averred that the testator expressed himself willing to commit to the appellant the trust of educating and bringing up his daughter Mary Ann, and that though no provision was made in the will of May, 1825, for her education and ^maintenance, she had, ever since the death of the testator, been maintained and educated by the appellant, who, in addition to the moral obligation she felt herself under, in that respect, was ready to superadd any legal obligation that the court of chancery might see fit to direct. A replication was filed and proofs taken, and the cause was brought to a hearing before the vice chancellor of the first circuit, in June, 1831, who, in September following, directed an issue of devisavit vel non, to ascertain whether the testator, on the 3d May, 1825, was of sound mind, memory and understanding, and competent to devise and bequeath his real and personal estate ; also whether he was competent to make a will on the 3d April, 1825, and did on that day make a will disposing of his property in the manner alleged in the bill; and also whether he did, at any time after the execution of the last mentioned paper, revoke the same. On making his decretal order, the vice chancellor delivered the following Opinion :
    “ There is no doubt about the necessity and propriety of an issue of devisavit vel non in this case, as regards the paper propounded as a will of the 3d May, 1825, unless the objection taken by the defendant’s counsel, to the further prosecution of this suit in its present form, should prevail. That objection is, that Mary Ann Idley, the infant, instead of being a complainant through the instrumentality of her brother-in-law Bowen, ought to have been a defendant to the suit, because it is alleged that her interest is in opposition to the interest of the other complainants, she being entitled, under the will sought to be set aside, to the whole estate in remainder after the death of the defendant, her step-mother, to whom it is devised for life ; whereas, if the will of the 3d April is established, the infant will be entitled to one half of the estate in remainder ; and if both wills are entirely put out of view, she will then come in only for a share of the estate. In other words, that it is her interest to sustain the will of the 3d May, 1825; and in seeking to set it aside, they act adversely to her, and ought to have made her a defendant. And it is moreover urged, that the court was bound, whenever the suggestion is made, to look to the rights of an infant, and to arrest the *further progress of a suit commenced by a prochein ami, if it shall appear not to be for the benefit of the infant.
    “ There can be no question as to the duty and power of the court on this subject; for there are numerous instances where the court has interfered, and instituted an inquiry by a reference to ascertain whether a suit is for the benefit of the infant or not; and as occasion required, has changed the guardian and the position of the infant, so that its rights might be better protected. Cooper’s Eq. 28. Garr v. Drake, 2 Johns. Ch. R. 542. Fulton v. Roosevelt, 1 Paige, 178. But it is not a little surprising, if there be any solid foundation for this objection, that it has not been made in an earlier stage of the suit; and I must say the suggestion would have come with much more propriety before the cause was at issue, or at any rate before the parties had incurred the trouble and expense of the voluminous testimony which appears in this cause ; but I am by no means satisfied that the interest of the infant lies that way. It is true, she will be entitled, under the will, if it be established, to the whole of the estate in remainder; but until the death of her step-mother, which may not be in many years, she is not legally entitled to one farthing’s worth of benefit from the estate. In the other event, she will be entitled to a present estate, and to the benefit of an immediate ample support, which may be far more important to her, not only in a pecuniary, but in a moral point of view, than a long deferred expectancy. There is likewise another view of the case which appears to me decisive of this objection.
    
      “ The infant is not the sole complainant before the court; if she were, I might be disposed to look more closely into the conduct of her guardian or next friend in bringing the suit in her name ; but he is here also, with his wife, as complainants. The cause is at issue, not merely upon the rights of the infant, but between themselves and the defendant in relation to the validity of the will; and it is immaterial to the correct determination of the question, whether the infant is before the court as one of the complainants or one of the defendants. Independent of her, there are parties fully competent and able to litigate the matter with all the advantages which the law and the evidence, brought to bear on either side, will afford; and *it certainly can have no influence upon the matter of fact to be tried, on which side the infant stands. She is incapable in law of compromitting her own rights, nor is the act of her guardian, in placing her in the position of a complainant before the court, to determine what her rights are. It is more a matter of form than otherwise, so far as the question of the validity of the will is concerned, that the infant is before the court, and the court and jury must and will settle that question without regard to the place in which she stands. The defendant’s counsel will be at liberty to urge in argument, as they have done here, that the interest of the infant requires the establishment of the will. Besides, the guardian will be responsible to the infant when she comes of age, for any breach or omission of his duty, either in using her name improperly to subserve his own purposes, or by not protecting and guarding her rights.
    “ I cannot therefore permit this objection to prevail. There must be an issue to try the question whether the instrument of the 3d May, 1825, is or is not a valid will.
    “ If that question is decided in favor of the defendant, there is at once an end of the cause ; but should it be found not to be a valid will, the question, then recurs as to the antecedent will of the 3d of April, and whether that shall be established ?
    “ There is no doubt as to the fact of the making of such a will, and the competency of the testator at that time to make a will is not disputed, although the defendant does allege that the complainant Bowen procured that will to be made by fraud and imposition practiced upon the testator. The preponderance of testimony, however, is strongly against the truth of that allegation.
    “ But the great, and perhaps the only question in regard to this will, is as to its revocation: it was actually destroyed in the lifetime of the testator, and sometime between the 3d of April and the 3d of May—probably on or about the 1st of May. The bill charges it to have been destroyed by the defendant, without the direction, desire, consent or knowledge of the testator; but this she positively denies, and in her answer relates the particular manner in which it was destroyed by burning, under the direction and in sight of the testator, *and by his particular desire ; and I see no direct evidence in the cause contradicting this portion of her answer, which is responsive to the bill. It may however be, that the testator was at that time equally incompetent to revoke as he was to make a will. If so, the burning of the paper would not be a revocation, because it could not be considered as done animo revocandi. The presumption of law, however, is, that it was destroyed animo revocandi; for the law does not presume fraud, and the burthen of proof will lie upon the complainants. There is no difficulty, if that will should be found not duly revoked, of establishing it as a will by the decree of this court. Its contents are proved by the testimony of the gentleman who drew it and witnessed its execution. In Trevelyan v. Trevelyan, 1 Phil. 153, Sir John Nicholl says, “ There can be no doubt in law, that if a will duly executed is destroyed in the lifetime of the testator, without his authority, it may be established upon satisfactory proof being given of its having been so destroyed ; also, of its contents.” And in that case the learned judge pronounced in favor of and established a will, from the deposition of a witness as to its contents.
    “I shall therefore direct that the issue to be made up embrace the subject matter of the will of the 3d April, 1825, both as to its execution and its revocation, as well as the alleged will of the 3d May ; and upon the return of the verdict, I shall have the whole case before me, to establish the one will or the other, or to pronounce in favor of an intestacy, according to the result.”
    From the decretal order thus made, the defendant below appealed to the chancellor, who after hearing argument, delivered the following opinion: “ The only serious objection urged against the decision of the vice chancellor, in this case is, that the infant should have been made a defendant, instead of a joint complainant. Without expressing any opinion upon the correctness of the vice chancellor’s decision on that point, I am satisfied it did not furnish any grounds for an appeal by the defendant in her own name. No one can appeal from an order, who is not injured thereby. Steele v. White, 2 Paige’s Rep. 478. The decree or order of the vice chancellor, so far as it affects the rights of the appellant, is affirmed #with costs ; and so far as the appeal seeks to protect the right of the infant, it must be dismissed, but without prejudice to the right of any person to apply to the vice chancellor in behalf of the infant, to inquire whether it is for the interest of the infant, to have the suit prosecuted in her name.” And a decree was entered accordingly, from the whole of which the defendant below appealed to this court.
    The cause was argued here by
    ,C. O’Connor, for the appellant.
    D. S. Jones, for the respondents.
    The following points were presented and argued by the respective counsel :
    For the appellant.—1. The infant complainant ought to have been made a defendant. Bowen was an inconpetent prochein ami.
    
    2. The sanity of the testator was not rendered so doubtful by the testimony as to justify the court in awarding the issue.
    3. There was not sufficient foundation for either of the issues directed, in ■reference to the will of April.
    
      For the- respondents.—1. The defendant below was not entitled to appeal, either on the ground that the infant was made a complainant in the suit, or on the ground that Bowen was an incompetent prochein ami.
    
    2. The infant was properly made a complainant in the suit.
    3. Bowen was a competent prochein ami.
    
    4. The testimony shows that Joseph Idley was of unsound mind, and incompetent to devise on the 3d day of May, 1825, or, at all events, was abundantly sufficient to authorize the vice chancellor to direct an issue devisavit vel non, as to the pretended will of that date.
    5. There was sufficient foundation for both of the issues directed by the vice chancellor, as to the will of April 3d, 1825.
   *The following opinion was delivered

By Mr. Justice Sutherland.

The decree of the chancellor proceeds upon the ground that the evidence in the case authorized the issues awarded by the vice chancellor, and that whether his decision upon the other question presented in the case to wit, that “ the infant Mary Ann should have been a defendant, instead of a joint complainant,” was right or wrong, as Mrs. Idley was not injured thereby, it afforded no ground for an appeal by her in her own name. The decree, I" think, is correct in both its branches.

First, as to the feigned issues. The awarding of a feigned issue is always a matter of sound discretion in a court of equity ; its object is to inform the conscience and judgment of the court in relation to matters of fact involved in more or less doubt and difficulty. The trial by jury is supposed to afford advantages for eliciting the truth in relation to contested matters of fact unknown to any other system. It is competent for a court of equity, however, even where the evidence is contradictory and nearly balanced, to decide for itself without invoking the aid of a jury. 2 Atkyns’ R. 295. 2 Vesey’s R. 256. Barnard, Ch. Rep. 100. The verdict in such cases is not binding upon the court; it is but evidence addressed to its judgment, and if it does not produce conviction, it may be disregarded. Instances, however, are not unfrequent in which orders for an issue have been reversed upon appeal, where the appellate court deemed the preponderance and weight of evidence so decided as to remove all essential difficulty from the case, and to render the expense and delay of a trial at law unnecessary and useless. La Guen v. Governeur & Kemble, 1 Johns. Cas. 506. Leibblehill v. Brett, 1 Brown’s P. C. 57, 9.. It is incumbent upon a party who seeks to reverse such an order, to show that upon the evidence, as it stood, he was clearly entitled to a decree upon the matter of fact involved in the issue. Without analyzing the evidence, or intending to express any opinion as to its preponderance, either for or against the competency the testator to make a will on the 3d May, 1825, I shall content myself with saying that in my judgment, it leaves that tact so far involved in *doubt as to render it discreet and proper in the chancellor to take the opinion of a jury upon it. Different witnesses, with perhaps equal means of knowledge, express different opinions in relation to it. Some of them are related to the parties, and the testimony of others is, to a certain extent, inconsistent with their previous acts. It presents in these and other respects a case peculiarly fit for the cognizance of a jury.

If the testator should be found to have been incompetent to make a will on the 3d May, 1825, the question then "arises, whether there is sufficient evidence to establish the previous will of the 3d of April. The execution and contents of that will are sufficiently shown ; and there seems to be no doubt of the competency of the testator at that time to make a will; and I agree with the vice chancellor, that the preponderance of evidence is strongly against the allegation, that Bowen procured that will to be made by fraud and imposition, practiced by him upon the testator. The only serious question in relation to it, is as to its revocation. The bill charges that it was destroyed by the defendant, Mrs. Idley, or by her direction and procurement, and without the direction, desire, counsel or knowledge of the testator. The defendant, in her answer, admits that about three weeks after the making of the will, the testator requested her to bum it, and that she did commit it to the flames, and that it was utterly burned up and destroyed under the direction and in the sight of the testator. If this account of the transaction is true, (and there is no direct testimony in the case to contradict it,) then the only question upon the point will be as to the capacity of the testator at that time to revoke his will. . The destruction of the instrument, by the direction and in the presence of the testator, or even by his own hand, will not amount to the revocation in judgment of law, unless he had at that time sufficient capacity to understand the nature and effect of the act, and performed it, or directed it to be performed freely and voluntarily, with the intent to effect a revocation ; and although the instrument is not in being, its contents having been satisfactorily shown, there is no difficulty in establishing it as a will, if it is shown.tohave been improperly destroyed. Trevelyan v. Trevelyan, 1 Phillimore, 153.

*The precise day on which this will was destroyed is not shown ; the answer says it was about two or three weeks after it was made. This would carry it to the latter part of April, a period so near the 3d of May as to be within the range and operation of the evidence which tends to show the incompetency of the testator at that time ; especially when we consider that his incompetency, if it existed, was not produced by any sudden stroke or calamity, but was the result of a gradual failure of his mental and physical powers, produced by a protracted and excruciating disease. The same considerations, therefore, which call for an issue in relation to the making of the will of the 3d of May, apply with considerable, if not equal force, to the revocation of that of the 3d of April.

It is true, that a will proved to have existence, but not found at the death of the testator, is presumed to have been destroyed by him animo revocandi, with the intent of revoking it; and it is incumbent upon a party who seeks to esta-blish such will to repel that presumption, and show that it was improperly destroyed. Betts v. Jackson, 6 Wendell, 173, 197, and the cases there cited. 2 R. S. 68, § 67. The appellant will have the benefit xof this,principle upon the trial of this issue, and it will be for the complainants to impeach the revocation, by showing the imcompetency of the testator at the time, or that it was procured by fraud. The making and contents of the will of April 3d are so clearly established, that there was no necessity for an issue in relation to either of those points ; but it being proper with respect to the revocation, it was per haps discreet in the vice chancellor to submit the whole to a jury, especially as it would occasion no additional delay, and very little, if any, additional expense.

As to the objection that the infant, Mary Ann, was improperly made a complainant, instead of a joint defendant in the cause, the chancellor held that Mrs. Idley, the appellant, had no interest in that question; and he accordingly dismissed so much of her appeal from the decree of the vice chancellor as related to that subject. If Mary Ann had been of full age instead of an infant, and had united in the suit as complainant, deeming it due either to justice or her own interest to endeavor to set aside the will of the 3d of May, and *establish that of the 3d of April, it would hardly be contended that Mrs. Idley could in any stage of the proceedings, have objected to the position which she had though proper thus to assume. Being a proper and necessary party to the suit, no objection would lie on that ground. Mrs. Idley would have no legal or equitable right to insist that she was entitled to the aid and cooperation of Mary Ann as an ally, instead of being compelled to meet her as an adversary; and if a degree, under such circumstances, should be made, which might be deemed injurious to the interests of Mary Ann, but which did not in that respect affect the interest of the defendant, no lawyer would for a moment suppose that it would be competent for the defendant to overhaul such decree by an appeal.

It is a fundamental principle, applied with more or less strictness in all courts, that no one can be a party to a suit who has not, either in his own right or as the representative of some other person, an interest in the subject matter in dispute. 2 Mad. Ch. 174. 11 Johns. R. 488. In a court of equity, as the interest changes or varies, the parties are also changed, it being the object of the court always to keep before it those persons, and those only, whose interests are to be affected by its judgment or decree. Harrison v. Ridley, Comyn’s R. 590. This subject was well considered by this court, in the case of Reid v. Van Der Heyden, 5 Cowen, 720. That was an appeal by John G. Van Der Heyden to the court of chancery sitting as a court of probate, from a decree of the surrogate of the county of Rensselaer, establishing the will of one Samuel Van Der Heyden. Samuel Van Der Heyden died on the 27th of November, 1824, leaving his wife ensient. of a male child. On the 10th December following, the will was presented for proof, the respondent, J. G. Van Der Heyden, having previously entered a caveat against it. Citations were duly issued, and J. G. Van Der Heyden, who was a brother of the half blood to the testator, appeared and contested the will, alleging that the testator, at the time of its execution, was not of sound and disposing mind and memory. The surrogate, on the 20th of April, 1824, established the will. From that order or decree, J. G. Van Der Heyden appealed to the court of chancery. It appeared before the chancellor that the child, #of which the wife of the testator was ensient at the time of his death, was born on the 15th day of April, 1824, before the appeal was brought, and was living at that time, being the only child of the deceased. The" will gave the whole of the testator’s property to his wife and child, and appointed the appellant and respondent executors of the will and guardians of the child after he should attain the age of ten years. Upon these facts, a petition was presented to the chancellor to quash the appeal brought by Van Der Heyden from the surrogate’s decree, on the ground that all his interest in the subject matter ceased upon the birth of the child, in whom the property then vested, independently of the will, as heir of his father, and that even if the child should die, Van Der Heyden could not claim ; that he therefore was not aggrieved by the decree, and could not appeal. It was admitted, that before the birth of the child, as one of the heirs and next of kin, Van Der Heyden had an interest to set aside the will. The chancellor refused to dismiss the appeal, and awarded an issue to try the validity of the will. From that order an appeal was brought to this court, where the decree of the chancellor was reversed, exclusively upon the ground that he should have quashed the appeal, it having been brought by a party whose interest in the subject matter had ceased, and whose right to continue the litigation of course ceased with it. That case, and the reasoning and authorities by which it is supported, abundantly establish the general principle, that no person can prosecute a suit in chancery, either by appeal or otherwise, who is not interested in the subject matter ; -and that although there may have been an interest when the suit was commenced,- if such interest is terminated during its progress, his right farther to interfere in the litigation is at end. The decrees of a court of chancery frequently have various aspects and bearings, affecting variously the different parties to the suit. A party aggrieved by one branch of a decree, does not thereby acquire a right to call in question another portion of the decree which has no bearing or affect upon his rights and interest. He can appeal only from such parts of the decree as affect him.

*Is this case varied by the circumstance, that the party whose interest the appellant is seeking to protect in this branch of the appeal, is an infant ?

The appellant is not her guardian, nor does she sustain in any legal relation to the infant which would authorize her to interfere with her affairs ; but if she did, that relation should appear on the face of the proceedings, and the appeal should be specifically as such guardian, so far as its object was to protect the infant’s rights. In the case of Reid v. Van Der Heyden, already referred to, it seems to have been urged or suggested, that although Van Der Heyden had no beneficial interest himself in the question, still, the relation in which he stood to the infant, (being his uncle and one of his guardians under the will, after he should attain the age of ten years,) authorized him to vindicate his rights. In answer to that view of the case, Judge Woodworth says : “ It is not pretended that Van Der Heyden is guardian to the infant, either ad litem or otherwise ; he has neither the custody nor protection of the child. Why allow him to litigate under pretence of benefilting persons who have a real interest ? Are we to presume them inattentive to their rights, and that the infant will be injured by their neglect 1 If this be so, what right has a stranger to interfere ? ' The infant must seek his remedy on coming of age.” The rights of the infant in this case are expressly saved by the chancellor’s decree ; for, while it dismisses so much of the appeal as seeks to protect her rights, it provides that it shall be without prejudice to the right of any person to apply for a reference to inquire whether it is for the interest of the infant to have this suit prosecuted in her name. Upon such application, the rights and interests of the infant will -be distinctly presented and passed upon. The established order and course of the court will be adhered to, 1 Paige, 179; 2 id. 80; 2 Johns. Ch. R. 542; 3 P. Wms. 142; 1 Cox, 285; 1 Dick. 310; 3 Atk. 603; and if the decision of the chancellor should be unsatisfactory to those who, on that occasion, may be the legal representatives and guardians of the infant, they will stand in a position which will enable them to have it reviewed without violating the elementary principle that no person can complain of or overhaul a decree, *by which he is not affected or aggrieved. Steel v. White, 2 Paige, 478. The books are full of cases in which courts of equity have, of their own motion or upon petition, directed a reference to ascertain whether a suit, prosecuted for an infant by a prochein ami, is for his interest; whether the guardian is a suitable person, and whether the infant is properly placed in the cause. 1 Paige, 178. 2 id. 80. 2 Johns. Ch. R. 542. 3 P. Wms. 142. 1 Cox, 285. 2 Sch. & Lef. 158. But no case has been referred to, in which such an objection has been taken, either by pleading or at the hearing, where there were other competent parties to the suit. It is a collateral proceeding, intended to change the character or position of the parties before the cause is ripe for a hearing on the merits.

I am of opinion that the decree of the chancellor should be affirmed.

On the question being put, Shall this decree he reversed ? the Chief Justice, Justices Sutherland and Nelson, and eighteen members of the court besides, voted in the negative, and only one member in the affirmative.

Whereupon the decree of the chancellor was affirmed.  