Hylton v. Hylton , 1 Gratt. 161 ( 1844 )

Allen, J.

delivered the opinion of the court.

The court is of opinion, that if the execution of the paper purporting to be the last will and testament of George Hylton senior, deceased, dated the 13th day of June 1835, had been duly proved, according to the requisitions of the act of assembly prescribing the mode of executing wills, the evidence adduced to shew a cancellation or revocation thereof, was not sufficient to establish such cancellation or revocation.

The court is further of opinion, that the admission of , , , i the contestants that the paper had been duly executed as the last will and testament of the deceased, did not dispense with the production of the testimony required by law to prove the execution thereof. But as the oxhibition of such proof was prevented by the admissions of the contestants that the same was duly executed and attested, and that the testator was at the time thereof of sound mind and disposing memory; and that they opposed the admission of said paper to probat, upon the ground that it was subsequently cancelled or revoked; an opportunity should be afforded to the propounders of said paper, to exhibit further proof of its execution.

The court is therefore of opinion, that the judgment of the circuit superior court affirming the sentence and order of the county court, refusing to admit said paper to probat, is erroneous. The same is therefore reversed, with costs; and the cause is remanded to said circuit superior court, with instructions to receive further proof of the execution of the paper; and for further proceedings thereon according to law.