delivered the opinion of the court:
It is first insisted that the Piatt circuit court had no jurisdiction to pass upon the validity of “Sheet B,” because it had never been admitted to probate. The argument is, that under our statute only probated wills can be contested in chancery. In our view of the case the question thus stated is not properly presented for decision. The will of Edward Swaney was probated. He made but one will, which consisted of certain parts. That will was admitted to probate, but the county court rejected a part of it as not being duly executed. Within three years after such probate the beneficiary under the clause or sheet stricken out filed his cross-bill, in which he alleged, in effect, that the will as probated was not the will of the testator,—that his will was not expressed in two parts, but in three. The case is not distinguishable, in principle, from that of Wolf v. Bollinger, 62 Ill. 368. There, after the execution of his will, Jacob Bizer attempted to substitute Wolf for Bollinger as his devisee, without having the instrument re-attested or re-published, and the will so altered was admitted to probate. Bollinger filed her bill, “alleging that the instrument in writing, so altered and admitted to probate, was not the last will and testament of Jacob Bizer, but that said instrument in writing, as originally drawn up and executed, without said alteration, was his true last will, and prayed that the instrument in writing as admitted to probate be declared null and void, and that the instrument as originally drawn up and executed be established as the true will of the testator, and that his estate be distributed among the devisees therein according to its provisions.” From a decree granting the relief Wolf appealed, and insisted, as is done here, that the circuit court had no jurisdiction of the case stated, but it was held otherwise. The appellant in that case contended that, in a proceeding to contest a will in chancery, under the statute the court could only determine whether the instrument as probated was the will of the testator or not, and had no power to establish the instrument as originally executed as the true will, but the contention was overruled.
As said in the opinion of the Appellate Court, and shown by the decisions there cited, the question here is, what was the will ? If, under the evidence, “Sheet B" was legally a part of the will, we think it clear that the circuit court had jurisdiction to grant the relief prayed in the cross-bill by establishing the whole instrument as the last will and testament of the deceased. The authorities fully sustain the position that if “Sheet B” was attached to .the original will at the time the codicil was signed and attested, the execution of the codicil operated as a publication of it, and a re-publication of the whole will as it then existed. Also, that the condition of the instrument at that time, and what the testator’s intention was as to what.should constitute his will, might properly be shown by parol. Burye v. Hamilton, 72 Ga. 568; Beall v. Cunningham, 3 B. Mon. 390; Vancortland v. Kip, 1 Hill, 590; Mooers v. White, 6 Johns. Ch. 360; 1 Redfield on Wills, 288.
The jury were justified by the evidence in finding that the testator wrote and attached “Sheet B” to the original prior to the execution of the codicil. That being so, the reference by the codicil to the will was also a reference to that sheet. That the three parts were fastened together when he delivered the will to his executor, and that this sheet became detached by accident while it was being read and examined, soon after the testator’s death, can only be doubted upon the hypothesis that William M. Camp and other witnesses have sworn falsely, and of that there is no proof. We find no sufficient reason for holding contrary to the courts below. The true will of deceased included “Sheet B,” and the circuit court properly exercised its jurisdiction in establishing it as such.
This disposes of the substantial objections to the rulings of the trial court in giving and refusing instructions. There is no reversible error in that regard.
Other grounds of reversal have been considered. They do not go to the merits of the cause before us, and are, in our opinion, without force.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.