The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1866-05-30

DAY MORNING, MAY &C
Important Decree in the Court Of Probate.
We publish below decree from the Judge OF
the Court Of Probates OF this District sustaining
the validity of codicils to will, where the original
has been lost. The decree is one of vast import
ance, and tss 6rst case of the kind which has
ever occurred within the jurisdiction of this
Court: n -.
THE STATE OF SOUTH CAROLINA, CHARLESTON
DISTRICT.
IN COURT oRDINARY9
In matter Probate lat and I'd codicil to original
last will and testament of DR.. Joshua B. Whit
ridge, deceased, said original will being lost or
destroyed during decedent's life, or since his
dccease, and contents unknown, and incapable
Of proof dLlnnds.
under SPECIAL circumstances, proof Of due exc
cution and GiSedcnt's testamentary capacity
when cediGls v signed.
Osms Bailey. essominated executor Of decedent,
filed petition il t,iis Court, propounding first
writing which had been executed by decedent,
purportingto ba q last will and testament which
he alleged had been lost or destroyed, previous or
subsequentto to decedents death, by accident or
some casualty In the plnndering or destruction
moneyed Institutions Of this city, where it had
been depoaitsd for safe keeping, In charge OF one
of the officers Of said bank that the time OF loss
or destruction could not be ascertained, nor the
circumstances explained, except presumptively;
nor could The contents thereof be established by
s and sedo II further
lost will, and revoked many Of it's provisions,
and also contained several additional, dis
tinct, and substantial bequests, which could
take effect aud, be executed Independently
OF the will, and ON which special decree
cedent at and before his decease, was ignorant Of
the loss of said document, having every reason to
believe It was safe and intact in the vault of said
bank, whereit had been deposited for many years,
and consequently he had no intention TO revoke
either viii or codici, but, on the contrary, said
oodic being found in existence at bis decease, the
should take effect as far practicable, il not e1-
pressly Incompatible with adjudicated Law.
The testimony in support Of the statements set
forth In the petition substantially proves that the
an original kst will, which he deposited for safe
keeping with an officer in one Of the banks OF this
city; that subsequently, on the Oath day Of June,
1855, he made and executed the first codicil to his
said will, which he retained in possession, and on
q memorandum paper annexed thereto and in de-
cedents handwriting he declares his said original
will was then, and had been for many years, In
charge Of the officer Of said bank Subsequently,
on the 18th day Of February, 1862, he made and
executed second codioil, recognizing the exist
encA Of the original will and its continuance in the
same place, and the preceding codic referred TO.
peled the deeedent to abandon Wadmalaw Island,
where he resided and he went to Greenville, 8. c.,
where he resided until the period Of his deceaae,
on the 18th day Of April, 1856.
1t was further proved that, subsequent to 1852,
the assets, books and documents o. the institu.
ton, where said will was on deposit in 1862, had
been remoyeI tfomcthe city to some inland town
In the intcficr; that home papers and documents,
which had leen long time IN SAID bank, hsd
no schedule made 0f them, and These were plum
derad and destroyed during the war, or soon after
the surrender Of the city to the Federal troops
It was also proved that some books and other
documents of said bank, which had been removed
and destruction OF eaid city by Gen. 6herman's
army in February, 1866, about two months pre-
ceding deoedents decease. It does not appear
that decedent ever Withdrew the original will de-
posted for safekeeping with the officer Of said
bank, and the probability is the same continued
there untilhis decease, It's loss or destruction,
when sundry documents Of said bank were plum
dered and destroyed in Charleston or Columbia;
and decedent having died 80 soon after, and about
the termination Of the late wsr, could have no
original will was in existence, or had been lost or
at the period Of his decesse; and this s
confirmed, from the existence OF the two codicils
at his decease, and his retaining them in posses
sion to period Of his decease. As an additional
fact in this case, on perusa OF the codcils, it will
appear they revoke several Of the provisions and
bequests in the original will, and contain many
additional, distinct and substantial bequests,
each capable Of taking effect, from any estate
which decedent may have possessed or be entitled
to at his decease; and in addition thereto, said
codicils expressly nominates and appoints petit
timer one Of hin exeC1tOre
The law applicable to the allegations in the pc
tition, 80 far as they have been established by
the testimony will now be considered.
A codioil is an addition made by the testator,
ment. 1t is part Of the will, all making but one
testament It is prima facie dependent on the
will and the cancellation Of the will is an implied
revocation of the codicils; but there have been
cases where the codicils have appeared so indie
pendent Of and unconnectsd WITH the will that,
though the will has been held invalid,
lost or destroyed. It s question altogether of
intention. Tho legal presumption, under circum-
stances. may be repelled by showing the decedent
Intended the codicil to operate, Notwithstanding
the loss or revocation OF the will. The question
will depend mainly upon the contents Of the
several documents II the dispositions in the codi-
,ils are 80 complicated with and dependent upon
hose Of the will as to be incapable Of q separate
and independent existence, the destruction or loss
of the will necessarily revokes the codioils, and
The general presumption is rather in favor Of the
to involve q codcil in the loss or revo-
cation of will where contrary intention cannot
be collected either from the codic itself or from
extrinsic evidence.
But if the codicils are capable, from the nature
II their contents, of subsisting Independently OF
he will, the validity will not be affected by the
destruction Of the will.
Gases have Deen adjudicated in the Ecclesiastic
Ind Common Law Courts similar to and sustain
ng the validity Of codicil under facts and circum
stances similar to the present.
Where q teststor made will, the contents of
which we're unknown, the same not being found
It his death, the codicil was adjudged unrevoked,
here being nothing to show All intention to re-
'oke, it, and its being Of such nature as to be
capable of taking effect, Independently of the will,