#### *Hylton and Others v. Hylton and Others.

September, 1844,

Lewisburg.

(Absent Brooke, J.)

1. Wills—Probat—Admission by Contestants of Due Execution—Effect.*—A will is offered for probat in the proper court, when some of the heirs of the testator, make themselves parties, and oppose its admission to probat. When the case comes on before the court, the contestants admit upon the record, that the paper was duly executed by the testator, and that he was of sound and-disposing mind and memory, at the time ; but they oppose the admission of the paper to probat, on the ground that it was subsequently revoked. Held, this admission does not dispense with the necessity of producing the testimony required by law, to prove the execution thereof.

2. Same—Same—Same — Appellate Practice.—As the admission of the contestants prevented the exhibition of the proofs, the cause was sent back to the court below, to give the propounders an opportunity to produce it.

3. Same—Revocation—Evidence of.—Evidence, that a subsequent will had been made, and afterwards stolen from the testator, without any proof of its contents ; and proof of his declarations after the will was stolen, that he would die intestate, and leave his estate to be distributed according to the statute ; not sufficient evidence of a revocation of a former will.

At a court of quarterly sessions held for the county of Floyd, in November 1840, a writing, purporting tobe the will of George Hylton senior, deceased, bearing date the 13th day of June 1835, was produced in court, by Nathaniel Hylton the executor therein named, in order to be proved. The probat thereof, was opposed by Elijah Hylton, one of the sons of George Hylton senior, and others; and the case having been continued until the August term of the court for 1841, came on then to be heard, when the-court refused to admit the paper to probat, as and for the last will and testament of George Hylton senior, deceased.

The parties propounding-the will for pro-bat, took añ appeal from -this judgment of the county court, to the superior court of law- and chancery for the county of "'Floyd; and the case came on to be heard in that court, at the August term for 1841. The propounders of the will introduced W. Thompson senior, one of the subscribing witnesses, who testified, that he subscribed the will, in the presence of the testator, and at his request. That the signature of the name of the testator, is in the handwriting of the witness; w-ho.signed it at the request of the testator, in his presence, who then made his mark in the presence of the witness; and acknowledged the paper to be his last will and testament. Witness was well acquainted with testator, and believed him to be at the time, of sound mind, and disposing memory.

After this witness had been examined, the contestants admitted, that the will was duly and lawfully executed and attested; and that the testator was, at the time of the execution thereof, of sound and dispos.ing memory; but they opposed its admission to probat, on the ground that it had been subsequently cancelled or revoked. To prove the revocation, they introduced first, a witness Archelaus Hylton, a brother of the testator, who said, that he lived near to the testator, and heard him complain that his will and money had been stolen from him; this was in August 1839. Testator died in October 1840. He said he did not charge, his neighbours -with stealing his money arid'papers; that he helieved.it was his family. Witness advised testator, if he made another will, to put it in the hands of some person who would take care of it; his answer was, I will never make another will in my life, for the law is my will. Witness told him the law was equality, and would make his family equal; to which he replied, that is just what I want. In 1835, and 1836, testator’s sons, George and Simeon lived with him. Simeon continued to live with him until his death; George removed in 1836, about a quarter of a mile from his father’s, where he remained until his death. From the intemperate habits of testator, his- family, did very much as they pleased. Witness went to testator’s *house about the year 1837, to buy his land; his son Simeon objected to the sale; and when witness informed testator of it, he said Simeon need not object, for *73he did not intend he should have any of the land, and so the sale would make no difference with him. This was the same land devised, in the will offered for probat, to Simeon and George Hylton, testator’s sons. Witness had heard in the neighbourhood, that testator’s will had been stolen, some two or three years before the conversation with testator, detailed in his testimony.

Contestants introduced another witness, Archibald Thompson, who stated, he heard testator say to his daughter Betsy, they are tearing me and you all to pieces: the}' have stolen my will, or wills, (witness does not recollect which,) and money. This conversation was probably a year or two before testator’s death. About the same time, heard testator say he intended a hundred acres of the lower end of his tract for George, but did not intend any for Simeon. Children did very much as they pleased with every thing about the house. Witness said he had two conversations with George Hylton, about the wills of the testator, charged to have been stolen; one a few days before testator’s death, and the other the day of his burial. In both conversations, George Hylton having before said there was a will, which was in sly hands; the will witness supposed to be the same which was now offered for probat; witness told George that squire Hylton said, the executor would have to swear that it was the last will of the testator; to which George replied, it was not the last will.

The contestants introduced another witness, William E. Reid, who said he was intimate with George and Simeon Hylton. In a conversation with George Hylton, George gave witness to understand, he had the will that Mr. Thompson had written. Witness asked him why the last will was destroyed, George having told *him there was another will, to which George said, it was because it gave him and Simeon no more than the others. About the same time, witness talked with Simeon about the matter, who told him that there was another will, which gave him nothing more than it gave the others; that this will was not witnessed by any person, and was of no account; and that he threw it in the fire, and burned it up. Witness said he heard Simeon say on another day, that Sally Harbour, and Alexander M’Alexander, were witnesses to the will destroyed. The first is unable to attend court, and the other lives in the state of Missouri. In conversation with testator, some eighteen months before his death, testator told witness that his wills and money, were stolen and destroyed; and that they (meaning as witness understood, his family) were breaking him up.

The contestants introduced another witness, John Cross, who said that soon after it was reported that money was stolen from testator, he heard him say that his will had gone at the same time, and that from that time the law should be a will for him.

The testator was proved to have been of very intemperate habits, for some two years before his death.

Upon a consideration of the evidence, the superior court refused to admit the paper to probat, as the last will and testament of George Hylton sen’r deceased, and affirmed the judgment of the county court; whereupon the propounders of the will appealed to this court.

*

See Duff v. Duff, 3 Leigh 523.

ABBEN, J.,

delivered the opinion of the court.

The court is of opinion, that if the execution of the paper purporting to be the last will and testament of George Hylton senior, deceased, dated the 13th daj7 of June 1835, had been duly proved, according to the requisitions of the act of assembly prescribing the mode of executing wills, the evidence adduced to shew a cancellation or revocation thereof, was not sufficient to establish such cancellation or revocation.

*The court is further of opinion, that the admission of the contestants that the paper had been duly executed as the last will and testament of the deceased, did not dispense with the production of the testimony required by law to prove the execution thereof. But as the exhibition of such proof was prevented by the admissions of the contestants that the same was duly executed and attested, and that the testator was at the time thereof of sound mind and disposing memory; and that they opposed the admission of said paper, to probat, upon the ground that it was subsequently can-.celled or revoked ; an opportunity should be afforded to the propounders of said paper, to exhibit further proof of its execution.

The court is therefore of opinion, that the judgment of the circuit superior court affirming the sentence and order of the county court, refusing to admit said paper to probat, is erroneous. The same is therefore reversed, with costs; and the cause is remanded to said circuit superior court, with instructions to receive further proof of the execution of the paper; and for further proceedings thereon according to law.