delivered the dissenting opinion.
Some time in the year 1857, writings purporting to be the last will and testament, and codicil thereto, of Benjamin Brown, were admitted to probate in common form in the County Court of Bedford County. On the 5th day of July, 1859, Robert Brown and Robert C. -Maupiu and wife filed their petition in said Court, alleging .... that “ the writing was not the last will and testament of Benj. Brown; that the same was obtained by fraud and undue influence. That Benj. Brown was non compos mentis at the time of the execution of the will; that he was imbecile and totally incompetent of making a will, and that the same lacks the legal requirements;” and praying .... that “ the *372probate in common form be set aside and recalled, and the will certified to the Circuit Court of Bedford County, where the same may be probated in solemn form, and its validity tested in an issue devisavit vel non; ” concluding, “ a copy of the will is herewith tendered.”
On the 6th of July, 1869, the County Court made an order in the following words: “ This dause came to be heard this 6th day of July, 1869, upon the petition of Robert S. Brown and Robert C. Maupin and wife, and a copy of a paper purporting to be the last will of Benjamin Brovm being filed as part of the petition for the petitioners, and the answer of "Wm. H. Wisener, Sr., and Wm. Brown, executors of Benjamin Brown. And ' it appearing that a paper writing purporting to be the last will and testament of Benjamin Brown, deceased, in which said Wisener and Brown are named as executors, was admitted to probate in common form at the —- term, 1857, of this Court, and that said probate is now set aside • on the petition of said Brown and Maupin, that they may contest the will in the Circuit Court of Bedford County. It is ordered by the Court that this cause be certified to the Circuit Court of Bedford County, when a trial may be had on an issue devisavit vel non,” etc., etc.
On the 15th day of July, 1869, the Clerk of the County Court filed with the Clerk of the Circuit Court a copy of the proceedings in the County Court, consisting of a copy of the petition, including a copy *373of tbe paper purporting to be the will, answer, bonds and decree, the certificate indicating the papers constituting the transcript.
On the 6th of January, 1870, the executors moved the Circuit Court to strike the cause from the docket for want of jurisdiction, which motion was discharged. And thereupon “ the defendants moved the Court to compel the executors to probate in solemn form the alleged will of Benjamin Brown, deceased, and make up the issue of devisavit vel non, and thereupon the executors moved the Court for a certiorari to the County Court Clerk to certify the will and records probated in this cause, which is accordingly done.”
No certiorari is shown to have issued.
On the 5th day of April, 1870, before “ J. M. Phillips, Clerk,” “Joseph H. Thompson makes oath that he was Clerk of the County Cburt of' Bedford County at the time the last will and testament of Benjamin Brown, deceased, was admitted to probate in common form in said County Court, and that as such he was the keeper and proper custodian of the records of said Court, including original wills and the probate and record of the same. That as such he learned the court-house of Bedford County was destroyed by fire in the month of March, 1863, or about that time, that the office of the Clerk of the County Court was kept in a room in said building, in which room all the records were kept, and that most of the records of said Court were destroyed, and among these thus destroyed was the desk containing *374tbe records of wills and tlie files of original wills, and that he verily believed the original will of said Benjamin Brown and the records thereof were destroyed by said fire; he has never seen either since; he was Clerk when said will was proved in 1857, and continuously up to 1868. He further states that the certified copy of the said will and codicil included or mentioned in the issue in this case, purporting to be signed by him on the 10th day of June, 1857, is a true copy of said will and codicil, all in his own proper hand-writing.”
We find in the record this paper:
“William Brown and W. H. Wisener, the executors named in the will and codicil of Benj. Brown, deceased, after it was produced to the County Court and proved in said Court, they believe it was destroyed with its record by the fire which consumed the courthouse in Shelbyville in March, 1863. The copy produced was obtained by Wm. H. Wisener, Sr., immediately after the probate of the will. [Signed]
“WlLLI AM Bbown,
“W. H. WlSENEE.”
“Sworn to and subscribed before me, April 5th, 1870. ■ “J. M. Phillips, Clerk.”
Under the -orders of the Court of the 6th of January, 1876, the executors bring into Court the copy, and file the following declaration, viz.:
“And said executors say that said paper writing, of which the foregoing is a copy, is (or are) the *375last will and testament and codicil thereto of said Benjamin Brown, deceased, and this they are ready to verify.”
To this are the usual pleas and issue thereon.
In this state of the Becord, did the Circuit Court have jurisdiction to try the validity of -the will? I think not. Admitting it' to be a well-settled rule in this State that parties may by consent go to trial of an issue devisavit vel non upon a copy of the will, it is clear no such consent was given by the executors in this casé.
On the contrary, we find them at the outset moving to strike the cause from the docket for want of jurisdiction. • Then if a trial is to be had under the rules of law and practice, have these rules been conformed to ?
By Section 2173 of the Code it is provided: “And when the validity of any last will or testament, written or nuncupative, is contested, the County Court shall cause the fact to be certified to the Circuit Court, and send to said Court the original will,” etc., etc.
By Section 2179: “If the original will be lost or mislaid, so that it can not be produced On the trial of the issue, but the paper has been copied into the pleading or spread upon the minutes of the Court, the Court may proceed with the trial of the issue in the same manner as if the original were in existence and before it.”
It is readily seen that the section first cited con*376templates no loss or mislaying of tbe paper while in tbe custody of tbe County Court or its officers, and makes no provision for • sucb contingency.
It is as readily understood, the last section quoted has in view only tbe loss or mislaying after tbe paper has been sent to tbe Circuit Court. In this section are to be found tbe only instances in which tbe issue attempted to be presented here can be tried upon an abstract copy of the will in tbe absence of consent.
Tbe fact that tbe copy had 'been inserted in the pleadings or been spread upon the minutes of tbe Court, made it a part of the Record of tbe Court, as well as of tbe cause, at a time when the original was in existence and could not be detached from, by omission, mistake or improper addition. Hence, the reason of the Legislature, for the passage of the law.
But it is insisted the original had been destroyed with the record of its probate by fire, and therefore a certified copy is the best and only secondary evidence.
To the assumption of destruction by fire, I answer we do not know legitimately from this Record that the court-house or the records in it were burned; true we find a paper purporting to be the affidavit of the Clerk of the County Court, but there is nothing connecting it with or identifying it as a part of the Record; it has no evidence upon it of ever having been filed, nor is it- shown why, under what circumstances, nor whether in or out of term time it *377was made. It is sworn to before ffJ. M. Phillips, Clerk,” without more, is, as far as we can see, voluntary and ex parte, and so of the affidavit of Wise-ner and Brown.
Suppose, however, we treat them as regular in manner, they are wholly wanting in substance. They show no evidence of such, and merely give the belief of affiants; the affidavits of the former Clerk only showing that he had learned, not that he knew of the burning of the court-house; but even were they perfect in substantial respects, it must be remembered that for about two years before they were made, Thompson had ceased to be the Clerk, and another had become the custodian of the records of the County Court, from whom we heard nothing. Beyond these defects is a more fatal objection still.
The copy called “ a certified copy,” but which is not as it appears in the Record, is not, though it were certified, the best secondary evidence, the original being burnt. That copy is the individual, private property of the executors, furnished by the Clerk for their guidance in the administration of the estate, and has nothing of the solemnity of a record promoting the purpose of this proceeding.
After the destruction of the original will, and the record of its probate and registration, the best evidence in this issue would have been the supplied record of such probate and registration because of its solemnity and more inviolable repository, in procuring *378which a preserved copy ,of the will, sufficiently -identified, would be competent evidence.
The Circuit Court had no jurisdiction to supply the loss of the original will, it never having been filed in that Court. Code, 3097.
The motion to, strike from the docket, in my opinion, was well taken. The proceedings of the County and Circuit Court should be dismissed without prejudice. I am further of opinion the statement of facts by some of the witnesses was entirely too meagre to authorize an expression of opinion as to the capacity of the testator.