I need not decide anything with reference to the legal effect of these papers as securities; for, if they be merely lost, as is assumed by the bill, I can restore or reproduce them in the same condition they are proved to have been in, leaving it to the courts of law to decide what they are worth. But the point of this case is, whether they are lost merely, or whether they have been destroyed so as to annul them. Hothing short of that—not even proof of a declared purpose by William Chandler at some future time to annul them— will prevent a decree for their re-production, if he did not in fact annul them, though such an intention, or the declaration of it, may aid other proof of the fact of their destruction by him, so as to prevent their being operative *225as securities to charge his widow. And, on this question, I agree that the party alleging such destruction is bound to make it out to the satisfaction of this Court; and he has the onus, unless the proof of the existence of the papers at the time of Wm. Chandler’s death and of the manner they were then held by him necessarily connects itself with their existence as operative papers; and then it belongs to the general proof in the cause, as the complainant has to show the existence of operative securities at that period.
I do not think, therefore, though I at first inclined to give some force to it, that in this case there is much weight to be given to the question on which party the burden of proof lies. The question is, whether the complainant is entitled to a decree for the substitution of certain valid securities, alleged by him to have been such at his testator’s death and to be now lost or mislaid ?
The loss of these papers is proved, ineffectual search having been made for them at the proper place; and it is also proved that they at one time existed as valid securities. William Chandler sold property in Wilmington to his wife and conveyed it to a trustee for her, she paying from her own funds a part of the purchase money and executing these bonds, and also, with the trustee, the mortgage, as securities for the balance. But, it also appears in proof that the mortgage was not recorded ; that it was designedly kept from record,which raises a doubt whether, at William Chandler’s death, it was held by him as a security. To'this is added, for the purpose of strengthening that doubt, proof that Mrs. Chandler, the obligor in these securities, had many years before they were executed, loaned her husband $500.00, of her separate money, and that she held his check for this sum uncollected ; and that William Chandler, after having made his will and informed her of its contents, promised, in consideration *226of this fact and in order to satisfy her with its provisions, that the mortgage should notbe put on record nor enforced against her. Several witnesses prove that William Chandler,at different times, told his wife that she should be satisfied by the provisions of his will and that these securities should not appear against her (that being the point on which she was dissatisfied ;) and one unimpeached witness, Mrs. Deblormandie, proves a conversation between him and his wife, under very impressive circumstances, in which she said that she was now satisfied, giving as the reason that he had released her from this debt; to which statement he silently assented. To this is to be added the fact that the papers have not been found since his death, and it is not imputed that the defendants have them.
On the other hand, there is evidence in the deposition of James M. Williams that Mrs. Chandler referred to these papers as existing obligations after the death of her husband.
In this conflict on a question of mere fact I must decide the case upon the conviction produced by the testimony on my own mind; and from this I believe that William Chandler, in his lifetime and shortly before his death, made way with these papers in fulfillment of his promise that they should not be a charge against his wife. I believe that he held them from the first with an undetermined purpose as to using them; that the testamentary dispositions he made of his property, a just regard to the claims of his wife, and a disposition to satisfy her—all made it proper that neither the check which she held against him nor the bonds and mortgage he held against her should be enforced. It is, therefore, reasonable and probable that he should have done what he is proved to have promised to do, to relieve her of the charge which was evidenced by these papers; and,under the circumstances, the natural and the easiest mode of doing that was by *227destroying the papers themselves. I think I am fully justified in deciding the case on that ground, by his acquiescence in the declaration of his wife, made in' his presence just before his death and assented to by him, that he had released her from this obligation.
Decree dismissing the bill, with costs.