
    Legare and Wife against Ashe and others.
    The execution oí a third •will, is a re-uoo former the&sfa8t°-v«n be lost or mislaid; in which' case, parol evidence of its Eontents is admissible.
    THIS was an issue from the court of equity, and tried . , , J before a special jury, upon an issue of devisavii vel non. -Ann Berwick, the mother of the plaintiff’s wife, by her 'All, made in 1785, devised the whole of her estate (after of this, applied to her counsel, Mr. E. Rutledge, in 1790, , , ,. , ,. . . . . , to draw another will, sor toe purpose of giving this last acquired property also to the plaintiff and his wife, to whom she declared her A: envión was to give every thing she had. Mr, Rutledge drew this will, whi; h was regularly executed. But afterwards, in 1T03, Mrs. Berwick again applied to Mr. Rutledge to have a third will drawn, in order that she might make a still betttp», provision for her daughter, the plaintiff’s wife; who in all her wills was the principal object of the testatrix’s bounty. Mr. Rutledge accordingly drew this third will, and she executed it in his presence, and in his office, and it was witnessed agreeable to the statute of frauds. At her death, the first and second wills only were found, and not cancelled. There was no evidence of what became of the last will. It was supposed to have been left by the testatrix at Mr. Rutledge’s office ; but after a full search, he had not been able to find it among his papers. There was no reason to believe that she had cancelled it: on the contrary, there was strong evidence, and a variety of circumstances concurred to shew her perfect satisfaction of the contents of it, and a constant intention that they should be carried into effect. Mr. Rutledge and two of his students, who witnessed the will, gave parol evidence of its contents. The question was, therefore, whether the evidence was sufficient in law, to revoke some small legacies) to the plaintiff and his wife. She af-terwards purchas A ocher property ; and, in consequence 
      the first and second wills, and establish the last, or not ? After argument,
   Grimke, J.

was of opinion, and so directed the jury, that the last will not appearing, was strong evidence of its having been cancelled.

Waties, J.

The evidence offered affords a sufficient ground for the jury to find the last will. The non-production of it, is ónly a prima facie presumption that it was cancelled, and not a legal conclusion. The contrary may, and has been shewn, by parol evidence. The statute of frauds is not opposed to it. The evidence here, is not offered to dispense with that statute ; but to supply the loss of a will, made conformable to it. Such evidence would be admissible even in the case of a record lost. If the will had been designedly destroyed, parol evidence would not be admissible, because it would be making a new will. But it appears here, that the will was either lost or mislaid,, and never intended to be destroyed : for the intention of the testatrix in favour of the plaintiff .and his wife, continued unaltered to her death. There is no ground then to presume that the will was ever cancelled ; but the strongest ground to presume the contrary, and therefore, full proof of contents of it, may safely and legally supply its loss. It is true, there is found no precedent of a will lost by accident, being established on proof of the contents 5 but the strong reason for it, is a sufficient authority for making a precedent, and it is supported by principles. 4 Burn. Eccl. Law, 174. Swinb. 450. 513. In the case of Goodright v. Harwood, (Cowp. 87.) although the judges were of opinion that the proof there given of the contents of a will lost, was too uncertain to operate as a revocation of a former one, yet they indirectly allowed, that more certain and precise proof would have that effect. If then, such proof would be sufficient for the purpose of revoking a will, it is sufficient to establish one which has been lost.

Bay, J.

of the same opinion.

The jury gave a verdict for the plaintiffs, finding specially the contents of the last will, and that it revoked the former ; which verdict was afterwards certified to the court of equity, and a decree made according to it.  