Perkins v. Perkins , 21 Ga. 13 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Was the Court below right in holding, that it had bo power to establish copies of either of the two burnt -wills. ?

And first', was the Court right in holding this am? 1© Him will that had not been admitted to probate when burnt ?

A majority of this Court, including myself, think fibat tfessCourt was right in so holding. The following are my reasons for this opinion.

If the Court below had the power to establish % copy of either will, the Court must have derived that power fresa the following words of the sixth section of the Judiciary Act of 1799 ; “and the said Courts respectively,” (the Sapetisr and Inferior Courts,) “shall have power to establish copies .of lost papers, deeds or other writings, under such 3®ks sail precautions as are or may have been customary arei acerading to law and equity.”

But, in these words there is nothing that, in my opinloi^ confers on those Courts a more extended power over the subject of lost papers, than the power which Courts ®fi equity possess over the same subject And in this opinion, I ábñafc, I am supported by the uniform interpretation put upsatSius*words by the Superior and Inferior Courts themselves.

If I am right in this, then the question is, whether a Cimrt of equity has, or had, the power to establish a copy of iMs will

And I think the answer to that question must he, no.

There are cases in which a Court of Equity has interfered! to. set up a destroyed will, but they are cases in winds the-destruction of the Avill was by spoliation. There is 3*©? a caso, as far as I can find.out, in Avhich a Court of Equity las interfered to set up a will that had been lost, or that had jbeaa destroyed by accident, or indeed, even a will that Jb®/I Irasa suppressed by fraud. The decisions seem to have been «¡a-fined exclusively to cases of destruction by spoliation. — See 1, Story Eq. § 184, Note 1, Id. § 254, Note 6.

But, if there is any- thing in these words to confer on the. Superior and Inferior Courts the power in question, that thing is in conflict with a part of what is contained in a later act than the act of 1799, viz: the act of 1810, for “more effectually securing the probate of wills,” &c. That part is as follows: “and the said Inferior Court when sitting for ordinary purposes, shall have the original jurisdiction of all testate and intestate estates.”

. For let us say, that the part of the sixth section of the act of 1799, above quoted, gave to. the Superior and Inferior Courts, the power to establish the copy of a lost will. What is the establishing of the copy of a lost will by a Court? It is the Court’s adjudging and determining two things ; first, that there existed an original will. Secondly, that the established copy is a true copy of that original will. And the first of these two things is neither more, nor less, than & probate of the will. If anything further can be needed to complete the probate, it can only be, that the established copy shall be filed and registered in the Court of Ordinary. The judgment establishing the copy, will have cut off that Court from all right of enquiry, as to whether there was a will or not, and if there was, as to what was its contents. In a word, the Court establishing the copy, will have taken the original jurisdiction of the “testate” “estate.” If therefore, the sixth section of the act of 1799, authorized the Superior and Inferior Courts to do anything of this sort, it authorized them to do what the later act, the act of 1810, forbade them to do ; for the act of 1810, transferred the authority to do all things of the sort, from those Courts to the Court of Ordinary, when sitting for ordinary purposes. In .short, if anything in the said sixth section of the act of 1799, gave the power in question to the Superior and Inferior Courts, that thing was repealed by the act of 1810.

For these reasons, I think, that the Court below was right in bolding, that it had no power to establish a copy of the burnt will that had been burnt before probate.

As to the case in rvhich, the burnt will had been admitted to probate before it was burnt; most if not all of these reasons will, it is manifest, equally apply to it; and Some of them with increased force.

A will that has been admitted to probate, becomes a paper ■of file, belonging to the Court of Ordinary. And a paper on' th.es files of a Court is much of the same rank and dignity ns a record of the Court.

The words of the sixth section of the Judiciary Act are, as . we have seen, “lost papers, deeds and other writings.”— "Other writings,” although a general expression, will not, in this connection, include a record; for it is a rule of interpretation, that general words closing an enumeration of particulars, do not extend to particulars that are of higher rank than any of those contained in the enumeration.

And then, if the power conferred by the said sixth section -on the Superior and Inferior Courts, was no more extended a power, than that possessed by a Court of Equity, it was not a power that,authorized those Courts to establish the records of other Courts; for a Court of Equity never possessed the power to establish the records of another Court. There was never any need that it should possess that power. Every Court of record has ample power to establish its own records.

Therefore, I think, that the Court below was also right in bolding, that it had no power to establish a copy of the burnt will that had been admitted to probate before it was burnt,-