Daniel Clark et al., Appellants, versus Jonathan Wright, Executor.
A. codicil fraudulently destroyed was established upon parol proof of its contents.
This was an appeal from a decree of the judge of probate approving and allowing a certain paper, dated the 1st of May, 1811, as the last will of William Clough.
The appellants, heirs at law of the deceased, pleaded that this paper ought not to be allowed as his last will, because they said that in 1820 he made and published a codicil making a material alteration in his will, and that the will and codicil *67thereon were taken from his possession without his consent, and b7 collusion, and the codicil torn off and destroyed. And upon issues to the country it was found that he did make and publish a codicil, and that it had been fraudulently torn off from the will.
The will contained several devises, and the codicil, according to a paper exhibited as a copy, affected only one of them, the testator having substituted Susanna Clark and her children as devisees of one parcel of land, instead of Ann Clough, who died before the making of the codicil.
A petition was presented to the Court by William Clough, a deyisee under the original will, praying that he might be permitted to become a party to this suit.
The cause was argued first at this term, and afterwards at October term 1825 in Middlesex.
Webster and Hubbard for the appellee and the petitioner.
The decree of the judge of probate is to be sustained. The St. 1783, c. 24, § 1, provides, that “ no devise in writing, of lands, tenements, and hereditaments, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction and consent,” &c. This will has not been revoked in any one of the modes here mentioned, and as to the codicil, that was destroyed without the consent or knowledge of the testator. The codicil may or may not have altered the provisions of the will, for it may have been only a devise of subsequently acquired estate ; and unless the contents of the codicil are proved, the Court cannot say that any alteration -has been made, and the will remains good. Harwood v. Goodright, Cowp. 87.
But we say further, that the codicil, whether it relates to real or personal estate, may be set up on parol evidence of its contents, and the authorities are decisive on this point. Toller’s Law of Executors, 71 ; Haines v. Haines, 2 Vern. 441 ; Trevelyan v. Trevelyan, 1 Phillim. 149 ; Scruby v. Fordham, Addams, 74 ; Foster v. Foster, ibid. 462 ; Legare v. Ashe, 1 Bay, 464 ; Daiston v. Coatsworth, 1 P. Wms. 731, and Woodrooff v. Burton there cited ; Onions v. Tyrer, ibid. 345 ; Ex parte The Earl
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of Ilchester, 7 Ves. jun. 372. Where a deed is lest or destroyed it is every day’s practice to admit secondary evidence.
Prescott and Bliss, for the appellants,
seemed to yield the point of the admissibility of parol evidence to prove the codicil.
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. 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.