Clark v. Wright

Parker C. J.

I see no difference in this respect between a deed and a will. It would be a cause of great injustice, if the accidental or fraudulent destruction of such instruments should deprive parties interested, of the right to give evidence of their contents.

Parker C. J.

The Court have no doubt but that the codicil may and ought to be proved.1 It will be for the party claiming under it to consider whether he will make application here, or before the judge of probate, to have it allowed.

Webster suggested that this Court has power not only to reverse or affirm, but also to reform, the decree of the judge of probate.

He afterwards presented a written application on behalf of the appellee, praying that he might be allowed to prove the contents of the codicil, and that thereupon the same might be allowed and established, and stating that a paper exhibited was a true and exact copy of the codicil. Depositions were then offered, proving this paper to be a true copy, and the same was thereupon allowed as a codicil ;* and the Court directed the clerk to record at large the application of the appellee, the copy of the codicil, and the depositions.

1 See Swinb. pt. 6, § 14, pl. 4; Martin v. Laking, 1 Haggard, (Doct. Com.) 244; Davis v. Davis, 2 Addams, 224; Parker v. Hickmott, 1 Haggard, (Doct. Com.) 211; Huble v. Clark, 1 Haggard, (Doct. Com.) 115; James v. James, cited in note to Lillie v. Lillie, 3 Haggard, (Doct. Com.) 185; Williams on Executors, pt. 1, bk. 4, c. 3, §7; Jackson v. Russell, 4 Wendell. 543; Fetherly v. Waggoner, 11 Wendell, 599.

* The decree was as follows. — And now, on the motion or petition of the said Jonathan Wright, the executor, the jury having found that the said William Clough, the testator, did, after the execution of his said will, duly make and publish a codicil thereto, which said codicil was afterwards fraud ulently torn off and destroyed; and the paper writing in the cause, marked A, having been propounded as a true and exact copy of the said codicil, and probate and allowance prayed; and the Court having proceeded to take evidence to prove the same paper A to be a true copy of said codicil, and being satisfied thereof:—It is therefore ordered, adjudged, and decreed, that the said decree of the judge of probate, appealed from in this cause, allowing the said instrument as and for the will of the said William Clough, be and the same hereby is affirmed.—And it is further ordered, adjudged, and decreed, that the said codicil, as written and expressed in the said paper marked A, be, and the same hereby is, received, approved, and allowed as and for a codicil to the said will of the said William Clough deceased; and that an examined copy of this decree, together with the original will as proved and allowed by the judge of probate for the county of Suffolk, and the codicil proved and allowed as aforesaid in this Court, be remitted to the said judge, that he may farther proceed in the premises according to law s