#### A. B. MARSH et al., PROPOUNDERS, vs. JOHN A. MARSH et al., CAVEATORS.

Where a will is duly executed, the execution of a second will which is after-wards destroyed, is held by the common law courts, not to affect, in any degree, the validity of the first.

In the Ecclesiastical Courts, the effect of the execution of the second will is made to depend upon the question of intention.

Whether the principle is absolute, or modified, need not be decided where proof of the intention is full and satisfactory.

Issue of devisavit vel non, tried before his Honor, Judge Caxdwell, at the last Pall Term 6f Chatham Superior Court.

The will of William Marsh, dated in 1835, with various codicils, all proved by the subscribing witnesses, there being two to each, was propounded. It was admitted that the supposed testator was of sound mind.

It was proved, in behalf of the caveators, that subsequently *78to the making of the will offered for probate, and to the codicils, to wit in 1850, the supposed testator made and executed another will, inconsistent with the one now offered, and revoking the same in terms. As to this, it was further proved, that, supposing the will propounded to have been lost, the decedent sent for a neighbor and had another will drawn and executed, as nearly identical with the former (he said,) as he could make it. Afterwards, the same neighbor was sent for, with directions to bring the will in his possession with him, which ho did; he was then told by the decedent that the former will was found, and the same w;as produced, lie requested his neighbor to read over both the wills, which lie did distinctly, and he then deliberately declared in favor of the former,—said he liked it better than the other, which he ordered to be destroyed, which was accordingly destroyed, and the one of 1835, by his direction, was taken care of.

It was contended by the caveators, that though the second will was destroyed, yet, being inconsistent with the former, and having contained a clause of revocation, the will of 1835 was revoked and annulled, and was not the last will and testament of the decedent, and asked his Honor so to instruct the j ury.

The Court declined giving such instructions, but told the jury that if tire decedent made the will of 1850, under the impression, and belief, that the will of 1835 was lost, and if, after the latter was found he recognised it as his will, and had the other burnt, it would be his will, and the will of 1850 did not revoke it.

To this charge the Counsel for the caveators excepted.

The jury found the script propounded, to be the last will and testament of decedent. .

Judgment, and appeal by the caveators.

Ilaughton and Mcmly, for the propounders.

Bryan and Graharh, for the caveators.

Peap.son, J.

As wills are ambulatory, and have no opera*79tion until tlie death of the testator, it is difficult to see how the execution of a second will, which is afterwards destroyed by the ¿estator, can, in anywise, affect the validity of a will previously executed. Both are inactive during the life of the testator, and the cancellation of the second, it would seem, must necessarily leave the first to go into operation at the testator’s death. Nor is it perceived how the fact, that the second contained a clause of revocation, can alter the case; because that clause is just as inactive and inoperative as the rest of it, and so continues up to the time that the whole is cancelled. This principle is settled in the common law courts in England, in regard to devises. Goodright v. Glazier, 4 Burr. 2512, Harrod v. Goodright, Cowper 92, 1 Jarman 123. But in the Ecclesiastical Courts, in regard to wills of personalty, the principle is modified to some extent, and the validity of the first will is made to depend upon the question of intention which, however, may be established by parol eiddence of declarations and other circumstances tending to show an intention to restore the first Avill. Moore v. Moore, 1 Phill. 292, Ustick v. Bowden, 2 Add. 125. 1 Wins. Exrs. 88. It is not necessary, however, for us to enter into the controversy, as to whether the principle giving validity to the first Avill, is absolute or modified, for, in our case, there is plenary proof as to tlie intention, Avhich has been passed on by the jury. The motive for making the second Avill Avas, because the testator thought the first was lost. As soon as it is found, he destroys the second Avill, expressly declaring that lie preferred the first, and giving directions that it should bo taken care of. There is no error.

Pee Cueiam.

Judgment affirmed.