Opinion
(December Term, 1830.)
1. A plaintiff who claims under a will which is not admitted in the answer must produce it, or a copy of it, at the hearing, or account for its loss.
2. One who claims under a will which is not established must have all the persons interested to contest it before the court.
From WAYNE. The bill charged that the defendant, in 1807, made an entry with the entry-taker of Wayne County; that before a grant issued thereon he agreed to convey the land thus entered to his father, John Applewhite, and executed a bond by which he bound himself to have the entry surveyed, and, after obtaining a grant, to convey it to his father; that the defendant had perfected his title to the land, but in consequence of the father's death, the defendant never had conveyed the land according to his agreement; that John Applewhite by his will devised the land above mentioned to his son, Isaac, who was also dead, leaving the plaintiffs his heirs at law; and that the defendant had refused to convey the land either to Isaac or the plaintiffs. The prayer was for a conveyance to the plaintiffs.
Mordecai, with whom was Devereux, for plaintiff.
Gaston for defendant.
The defendant admitted the entry as charged in the bill, and that a grant had issued to him, but denied the execution of the bond to his father as alleged in the bill. He admitted that long after the issuing of the grant, his father being then very old and on his deathbed, Isaac, the ancestor of the plaintiffs, proposed to him, the defendant, that as the land had always been occupied by their father, and was supposed to have formed a part of his home plantation, that the defendant should execute a bond to make their father a title thereto; that for the sake of preserving the peace of the family, the defendant did then execute a bond (461) to his father, with a condition to make a title, not to his father, but to his brother, Isaac. But he averred that no other consideration passed to him upon executing this bond; and shortly thereafter it was by the father, with the consent of Isaac, canceled. The defendant admitted the devise of his father to Isaac of the home plantation, but denied that the land in dispute formed any part thereof, or that it would have passed by the will, supposing the father to have had title thereto, He averred that John, the father, left two other children besides the the plaintiffs were entitled to only one-fourth thereof, as it did not pass under the will of the father.
A replication was taken to the answer, and several witnesses were examined, whose depositions were read at the hearing. But there was no copy of the will of John, the father, filed as an exhibit; it was said to have been lost after probate, but before it was recorded; but there was no proof of this fact.
Proof of the devise to Isaac is indispensable to support this bill. If the fact be, as charged in the bill, that the condition of the bond was to make title to the father, most certainly he who claims as his devisee must show a devise. If it be, as insisted on in the answer, that the condition was to make title to Isaac, the circumstances attending its execution prove most clearly that such condition was introduced as ancillary to the will. So far, therefore, the condition was testamentary, and fell to the ground either by revocation of the will or if the will was not executed to pass real estate, or by any other cause which rendered the will inoperative. But the weight of (462) evidence is in favor of the case made in the bill. Neither the will nor a copy is offered in evidence; but the answer admits a devise to Isaac of the home plantation, but denies that the lands in question are embraced by that description, and there is no evidence to prove that they are. The deposition of one witness, taken evidently to another point, renders it somewhat probable that they are part of or adjoin the home plantation; but it by no means proves it satisfactorily. The depositions of the other witnesses state that by the will the lands were devised to Isaac. This is giving parol evidence of the contents of a paper without proving its loss, or that it is beyond the reach of the party offering it. And, besides, they do not state the words or substance of the devise. The bill must therefore be dismissed, for want of proof of the fact of the devise.
The bill is objectionable for want of parties, the heirs of the father, as they are interested in contesting the devise; for if not devised, the lands descend to all the heirs. The bill is silent as to who are the heirs, and therefore does not make a case proper for a decree. But the answer states expressly that there are two other heirs not before the court. If the case made had been supported by the evidence, this defect might have been aided by an amendment. But we cannot get over the defect in the proof.
PER CURIAM. Bill dismissed with costs, but without prejudice.
(463)