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

Important Decree in the Court of Probate.
Wo publish below decree from the Judge of
the Court OF Probates of this District, sustaining
the validity of codicfls to WILL where tho original
has been lost. Tho decree s one Of vast import
ance, and the first case OF the kind which has
over occurred within the jurisdiction of this
Court:
DISTRICT.
Il COURT oRDINARr.I
In matter Probate 1st and I'd codicii 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
of proof aliunde.
Decree sustaining validity Of 1st and I'd codicil
under special circumstances, proof of due exc
cution and decedenps testamentary capacity
when codicils were signed.
Osma Bailey, nominated executor OF decedent,
filed petition in this Court, propounding first
and second codicil to previous instrument of
writing which had been executed by decedent,
purporting to bo O last will and testament which
he alleged had been lost destroyed, previous or
subsequent to decedents death, by accident or
some casualty in the plundering or destruction
OF some documents belonging to one Of the
moneyed institutions Of this city. whore it had
been deposited 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 tho
e
legal and competent testimony. It was further
alleged that said codicil distinctly referred to said
and also contained several additional, dis
tinct, and substantial bequests, which could
take effect and be executed independently
of probate may be had; and, moreover, that de-
cedent, at and before his decease, ignorant Of
the loss Of said document, having every reason to
believe it was safe and intact, in the vault Of said
bank, where it had been deposited for many years.
and consequently he had no intention to revoke
either will or codicil, but, on the contrary, said
codicl being found in existence at his decease the
legal presumption and intention must be they
should take effect far practicable, if not ex-
pressly incompatible with adjudicated law
forth in the petition substantially proves that the
decedent, many years since, did make and execute
original last WILL which he deposited for safe
city; that subsequently, on the Gath day of June,
1885, he made and executed the frat codicil to his
said will, which he retained in possession, and on
| 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 25th day Of February, 1862, he made and
executed second codicil, recognizing the exist
Of the original will and it's continuance in the
same place. and the preceding oodicil referred to.
After this period the condition OF the country COM
PEELED the decedent to abandon Wadmalsw Island,
where he resided, and he went to Greenvie, 8. O.,
Se hs S dsT Of aar bs ger0d of bis doea
It was further proved that, subsequent to 1862,
| the assets, books and documents Of the institu-
ton, where said VIII was ION on deposit in 1862, had
in the interior; that eome papers and documents,
which had been q long sine in said bank, had
been left in the vaults OF the bank in the city, and
no schedule made Of them, and these were plum
dered and destroyed during the war, or soon after
the surrender OF the city to the Federal troops.
documents OF said bank, which had been removed
| to Columbia, were also destroyed on the capture
and destruction OF said city by Gen. sherman'a
army, in February, 1855, about two months pre-
ceding decedent's deoease. It does not appear
that dscedent ever Withdrew the original will e;
posted If for tsaieksepng with the officer Of said
there until his decease, or its loss destruction
when sundry documents of said bank were plum.
dered and destroyed in Charleston or Columbia
and decedent having died 30 soon after, and about
the termination of the late war, could have nc
knowledge, or obtain information, whether said
original will was in existence, or had been lost
DESTROYED at the period OF his decease; and this e
confirmed, from tho existence of the two codicilt
at his decease, and his retaining them in posses
sion to period Of his decease. AS an additiona
appear they revoke several of tho provisions ant
be9uests in the original will, and contain man.
additional, distinct and substantial bequests
each capable of taking effect, from any estate
which decedont may have possessed or be entitled
to at his decease; and in addition thereto, SAT-
codicils expressly nominates and appoints peti
The law applicable to the allegations in the pc
tition, so far as they have been established b.
the testimony, will now be considered.
and annexed to and to be taken part OF @ tesla
ment. It is part of the win, all making but on
testament; 1t is prima facie dependent on tn
revocation Of the codicils; but there have beel
cases where the codicils have appeared 80 inde
pendent OF and unconneoted with the will that
under certain circumstances, the codicil has beel
established, though the will hns been held invalid
lost or destroyed. II ia question altogether Q
intention. The legal presumption, under oircum
stances. may be repelled by showing the deceden
Intended the codicil to operate, notwithstanding
: will depend mainly upon the contents Of tn
several documents II the dispositions in the cod
oils are 30 complicated with and dependent upol
those OF the viii as to be incapable OF separat,
and independent existence, the destruction or los
q OF the will necessarily revokeB the codiciis an
the general presumption Is rather in favor Of tn
intention to involve codicil in the loss or revo
cation OF will where contrary intention canno
extrinsic evidence.
q But if the codicils are capable, from the natur
OF their cir contents, Of subsisting Independently
sns w the % ha haIidty will not be affected by
i Gases have been adjudioated in the Ecclesiasti
and Common Law Courts similar to and sustain
ing the validity of codicil under facts and crcum
0 stances similar to the present.
oil Where testator made will the contepts O
0 which were unknown, the same not being foun
o at his death, tho codici was adjudged unreyoked
t there being nothing to show an intention to re
Q woke IT. and it's being Of such nature as to b
especially ii dligent search and enquiry aftor tn
will in those places whore it would most probabl
be found to exist has been made as in the presen
Is case. Fee 1st, Terman on Willis, pages 164 an
o 229; 4th, Haggard's Rep, page $50; 1st, Curt
Rep. Taggart Us. SqureB, page 289.
The evidence in this case establishes deceden
8 did make WILL which he deposited for safe keep
" ing with an officer Of one of the City Banks an
continued in the same place to the period Of 1861
;, when he executed a second codicil-retainiug bot