*Columbia.*

Heard before Chancellor Desaussure.

ca'se *zxxxt,*

#### The Heirs of D. Milling, *vs.*Barber, Woodward and Barkeley.

Tlie court decreed that the defendants who had purchased land from the heir at law, who had destroyed his father’s will, should deliver up the original grant, and the title deeds they had received from the heir. The complainants had established their title at law. Each party to pay his own cost3.

JUNE, 1815.

John Fortune was seized and possessed of a tract of land in Fairfield District, and devised the same by his last will and testament, duly executed, to his wife, for the benefit of herself and his children, except his eldest .son, Wt». Foi’tune, whom he excluded. He authorized the sale and division of the money it might bring as aforesaid, and died leaving his will in full force.

On the 28th Nov. *1777,*Ann Fortune, the widow and devisee, agreed to sell the land to John Milling, and executed her bond ip the penal sum of 2,0001. currency, with condition to make titles thereto to said J. Milling, in fee simple : But the said Ann Fortune died without having actually executed conveyances to the said John Milling. William Fortune, who was the eldest son and heir at law of his father, (as the law then stood,) clandestinely possessed himself of the will of his said father, and actually destroyed it; a nd then claiming as heir at law'both to his father and mother, sold and conveyed the land to the defendants, and delivered them the original grant, and other title deeds and documents relating to the said land. Joha Milling died prior to the 1st of May, 1791, leaving David Milling his heir at law. The relief prayed was, that the defendants may be decreed to bring in the deed of Wm. Fortune, conveying the land to them, and to deliver up the same; and that they may be compelled to release to the complainants, their legal right or title to the land.

No answers were put in by the defendants, and tire bill was taken pro confess»,-

*559At-thehc ring it was proved by the witnesses, that they had heard Win. Fortune complain that his father had by his last will cut him off, and had devised his land *to*his. mother, for the benefit of herself and the other children j and lie declared if he could get at the will he would destroy it, and then claim as heir at law. He sometime after said, he had been at his mother’s, and fixed things as he Wished; and he said, he would take possession of the land.

Woodward, one of the defendants, was cautioned against purchasing the laud¿ by one of tbe witnesses, who informed him that Mrs. Fortune had made bonds to.execute titles for the same to John Milling. But the defen-díante purchased and took Win. Fortune’s title.

Several trials at law were had between the defendants, claiming under William Fortune, and David Milling as heir at law of his father. The defendants failed in their claim.

It was contended for the complainants that every thing was to he presumed against the destroyer of the will or deed, in odium spoliatoris: and those claiming under him must suffer by his misconduct. That the will having been established by parol evidence, and the destruction of it proved, and the complainants having succeeded at law, were entitled to the aid of this court, to have their title established, and to obtain the orignaj grant, and the title deeds delivered up to them, which might otherwise, at some future day, be set up to their disadvantage. And that they were entitled also to have costs, because the defendants by retaining the deeds and' grant, had compelled the complainant to come to this court, to have 1Ú3 title, already established at law, forever quieted.

For the defendant little opposition was made to the claim of the complainant as to the title deeds *;*but on the ground of costs, it was insisted, that the defendants ought not to be obliged to pay them. They had been defeated at law, and could not support the legal title. The conr-plainants then were under no necessity to bring them into this court. It would have been enough for them to have *560brought the Fortunes here, to have compelled a specific performa»ce — and that even then it is not usual to make the heirs pay costs.

Chancellor Desaussure

delivered the following decree :

Jt is ordered and decreed, that the defendants do bring into this court and deliver up to the complainants, the deed which William Fortune executed, conveying to them the land in dispute between the parties, and also' such other grants and conveyances, as relate to the said estate, as the said William Fortune delivered to them-

It is further decreed that the defendants do execute such releases of all the title to the land in question, which they may have derived from the conveyance of William Fortune to them, as shall be prepared by the commissioner of this court for that purpose.

It is further ordered that each party do pay his own hosts of suit.