McCay, Judge.
1. The question whether, in any case, a court of chancery in this state can entertain jurisdiction of the probate of a will, is a new one, and deserves serious consideration, though it is mot, in our judgment, necessarily involved in the record. It is contended that the language of the constitution of 1868 takes away this jurisdiction, if it ever existed. The argument insisted on is as follows: The constitution of 1798 declares that the superior court “shall have concurrent jurisdiction in all other civil cases Constitution 1798, Article 3d, section 1. In section 6, of the same article, the powers of a court of ordinary, or register of probates, are in general terms conferred on “ the justices of the inferior court.” The constitution of 1861, after giving certain exclusive jurisdiction to the superior court, among' which is exclusive jurisdiction in equity cases, gives concurrent jurisdiction to that court in all other civil cases. In another section probate jurisdiction js given to the ordinary, and an appeal allowed to the superior court: Constitution 1861, article 4, section 2, paragraphs *1585 and 9, and section 3, paragraph 5. The constitution of 1868, after providing for certain exclusive jurisdiction, including equity cases in the superior court, gives the superior court jurisdiction in all other civil cases, “except as hereinafter provided: ” Article 4, section 2, paragraphs 5 and 9. Thereafter, to-wit, in section 3, of article 4, the powers of a court of ordinary are given to the ordinary, with an appeal to the superior court. The argument is, that by providing an appeal from the ordinary to the superior court, and by confering jurisdiction on the ordinary of probate cases, after the words “except as hereinafter provided,” it is meant to be declared that the jurisdiction of the ordinary is declared to be positively exclusive, so that under no circumstances can the superior court have jurisdiction, except by appeal, of any probate of a will. It is admitted that previously to 1861, the constitution was at least open, as this court intimated in Slade vs. Street, 27 Georgia, 17, to such a construction as gave the superior court such jurisdiction, as a court of equity, as the court of chancery had in England. But it is said that under the constitution of 1868, especially taking into account section 331 of the Code, which in terms declares the probate jurisdiction to be exclusive in the ordinary, even the jurisdiction which was formerly in the superior court, as a court of equity, is taken away. But we think the words, except as hereinafter provided, mean no such tiling as this. Were there no positive denial of jurisdiction, thereafter, perhaps the words would bear the meaning put upon them, but the constitution of 1868 positively denied jurisdiction to the superior court over certain debts and over the homestead. These words, “except,” etc., it will be noticed, are added to the clause giving jurisdiction to justice courts, and to the clause conferring equity powers upon the superior court, and are evidently qualifications upon the jurisdiction of all courts, in view of the positive denial of jurisdiction contained in the homestead and relief clauses referred to. It seems to us that this is the most natural meaning to put upon these words under the circumstances, and that to construe them as referring to the provis*159ion made afterwards, for a probate court, is strained and unnatural.
2. But the jurisdiction of the ordinary over the probate of wills, appointing administrators and executors, and generally of matters pertaining to intestate and testate estates, is, and always has been in this state, exclusive. This is the positive provision of the Code, section 331, and has been the constant practice and ruling of the courts from time immemorial. But what is meant by the exclusive jurisdiction of the ordinary in such cases ? Does it mean any moret ban is meant by exclusive jurisdiction in the superior court to try titles to land, or in the inferior court to lay out or close up roads, or exclusive jurisdiction in land courts to decide a question of bead-rights? If a case arise involving any of these questions, in which there is also'fraud, accident or mistake, or any of those complications which call for the interference of equity, jurisdiction arises in a court of equity, notwithstanding the exclusive jurisdiction of the other courts. A court of equity is “for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of larv Avould be deficient in protecting from anticipated wrong or relieving for injuries done:” Code, 3081. And if a case arise presenting those features which authorize equitable interference, the fact that some other court has ordinarily exclusive jurisdiction of the principal subject matter, is no hindrance to the equitable jurisdiction. A court of equity will, under proper circumstances, grant a new trial from a verdict at law, or before any court: Code, 3129. And our Code, as to questions of fraud, broadly declares that equity has concurrent jurisdiction Avith courts of law in all cases of fraud, except fraud in the execution of a will: Code, sec. 3172. These provisions of our Code are but a succinct statement of the chancery jurisdiction in England. Its fundamental idea is, that it undertakes to supply the lack of other courts in granting relief, where a right sufficiently perfect for redress by courts, is either not recognized by other courts, or by reason of their defective machinery cannot be fully protected and *160administered : Haynes’ Outlines of Equity, 23, 27; Law Library, volume 98. There was under the old system of England no mode by which a will of real estate could be probated and recorded once for all. It was considered a muniment of title, and was required to be proven, and might be attacked whenever it was offered in evidence before a court. The probate court, if the will was a will of personally as well as of realty, might probate it. But the probate was not noticed by the common law courts. This was a serious defect in English jurisprudence; and to remedy this, the courts of chancery in England will entertain a bill to establish a will of realty in favor of the devisee against the heir. The court does this under its jurisdiction to quiet titles and perpetuate testimony. But that is almost a probate, since, if it be established against the heir, the judgment binds his heirs and privies: Loveless on Wills, 416, 417 ; 1 Madd. Chan., 253; Boise vs. Bosborough, 52 E. Chan. R., 817, where the subject is fully discussed.
As to wills of personal property, this defect in the English system did not exist, and there was no call for chancery to remedy it. Probate of a will of personalty against the world, and once for all, was made in the ecclesiastical court. It was of the utmost importance to society that this should be done. The death of the owner of personal estate devoted his'personalty of every description to his debts, his legatees and distributees. It was, therefore, necessary that it should forthwith appear whether his personal property should be distributed or go to legatees, and that his debts should be paid before it went to either. Some mode, therefore, of settling once for all whether there was a will, was a necessity of society. This, for certain reasons which are part of the history of England, fell to the ecclesiastical courts, and was performed in all its details by those courts under rules as wide and as little cramped.'by common law narrowness as were the proceedings of equity courts. That there was a will, or that there was not, was inquired into, its precise terms were ascertained, it was spread upon a book for the registry of wills, and the court *161undertook the superintendence of its execution. In the doing of this it exercised powers and followed methods unknown to the common law, derived from the same source, the civil law, as the powers and methods of the court of chancery. It established lost, mutilated or destroyed wills ; it set aside its own judgments, and allowed rehearings and review's for good cause, and examined questions of fraud, accident and mistake as keenly and scarchingly as did a court of chancery. Under such a system even the broad jurisdiction of chancery over fraud might well be considered unnecessary in matters within the scope of the powers of the probate court. And long since it has been settled that fraud in the procurement of a will is not within the jurisdiction of a court of equity. Whether there be or be not fraud is one of the issues settled by the probate. If there be fraud, it is no will. If the will be set up, the judgment settles the matter. And if the application to chancery be before judgment, the reply is that the ecclesiastical court is competent to settle it. And though at one time equity would interfere to redress fraud in the proíate as it would fraud in a common law trial, by acting personally on the parties and compelling them to go into the probate court and do rightly, yet, in England that jurisdiction has rarely been exercised, and may now be said to be abandoned, the power of the probate court to grant new trial, to search the conscience of the parties and to punish for contempt, being ample and complete : See the cases collected and the subject discussed in Perry on Trusts, section 182. But both in this country and in England this limitation of the jurisdiction of chancery over frauds has not extended so far as to deny the jurisdiction where a will has been fraudulently destroyed. In Tucker vs. Phipps, 3 Atk., 363, Lord Hardwick asserts the jurisdiction in the very broadest terms. The case goes upon the general jurisdiction of equity over frauds, and recognizes the right of the legatee to come into equity against the spoliator, to enforce against him the bequest as a trust. A distinction is taken between the general probate of the will which properly pertains to the ecclesiastical court, and enforcing the' *162title or right of the legatee, and the chancellor says, that as against the spoliator, the court would not put the legatee to the hardship of establishing the words of the will against the world by probate before the ecclesiastical court. And so far as I can find there is no decision of a case in England contrary to this. In Dalston vs. Coalsworth, 1 P. Wiliams, 731, ■which was for relief against the fraudulent suppression of a deed, two cases are cited by the chancellor where the court decreed the spoliator of a will to hold the bequest in trust for the legatee, though there was no probate.of the will; and in Haynes vs. Haynes, 2 Vernon, 441, the same question was made and decided.
In this country there is a conflict in the decisions. In Ohio, 15 Ohio, 345, it is held that the will must first be set up in the probate court. And this would seem to be the rule in Louisiana; Gaines vs. Chew, 2 Howard, 619, and Gaines vs. Hener, 24 Howard, 553. Perhaps also in Massachusetts: 12 Allen, 1. But in Bailey vs. Styles, 1 Greenleaf’s Chancery Reports, (N. J.) 220; in Allison vs. Allison, 7 Dana, (Kentucky,) 90; in 1 Bay, (S. C.) 464; Meade vs. Langdon, (22 Vermont,) 59, and in Buchanan vs. Mastock, 8 Humphries, (Tennessee,) 390, the doctrine of Lord Hardwick, in Tucker vs. Phipps, is fully recognized and acted on. Our own court, in Slade vs. Street, 27 Georgia, 17, whilst this particular question was not the point of the case, distinctly recognize the same doctrine; and is there not great significance in the broad language of the Code, section 3172, that equity has concurrent jurisdiction with all other courts in questions of fraud, except fraud in the execution of a will. It cannot be doubted but that if a will be duly .made and executed, and the testator die, leaving it as his will, and it be fraudulently suppressed, that some court has power to correct the wrong. If the probate court lias the power, and in certain cases it clearly lias, section 2431, Code, then the express words of section 3272 gives chancery concurrent jurisdiction.
In the ease made by this bill, to-wit: one where a will duly executed has been destroyed after the testator’s death *163and the witnesses are all dead, we have doubts if the probate court has, in this state, jurisdiction. Section 2931 of the Code implies that the probate court can only set up a lost or destroyed will if the witnesses be living. Unless this is to be taken as a repeal of the well settled rule-that such a will may be set up on proper proof, then chancery alone has jurisdiction. In England, it is clear that a will duly executed and destroyed after the death of the testator, may be set up, though all the witnesses be dead, if clear proof be made that such a will did in fact exist: 1 Haggard, 115 ; 2 Lee, 22 ; 1 Adams, 462; and this is the general ruling in the courts of this country. See the doctrine discussed in 2 Redfield on Wills, 6, 11.
The statutes providing for the due execution of wills, while they provide in detail how they shall be signed and attested, make no provision as to how they shall be proven to have been so signed and attested. And the courts have adopted the rules of evidence usually enforced to prove facts in the courts. If the subscribing witnesses be within the power of the court they must be called. If they be dead, insane, or out of the jurisdiction, the next best evidence is the resort to proof of handwriting. If the will be lost, the witnesses must be produced, if accessible; if not, the next'best evidence is to be used. It is not meant by this rule that anything but evidence is to be used. And there are many cases where the courts have refused tire probate because the proof has not come up to the rule, which is well settled that the proof in such cases must be clear and satisfactory: See a discussion of the whole subject with the cases: 1 Redfield on Wills, 348, 349. Such being the general rules of law, we do not think that section 2431 of the Code was intended to deprive any court of the right to set up a lost will where the witnesses are dead, but only the court of ordinary, and it does that only by implication. Cases may be presented where the proof would be so clear as that it would be shocking to refuse redress, and where it would be not only a temptation to crime but a premium upon it to refuse.
*1643. As this case comes before us at present, the due execution of the will and its destruction by the only heir, the defendant’s intestate, is admitted, and our present decision is only that on the demurrer there is equity in the bill. Whether the facts charged are proven, may arise when the case is tried. We only say now that the law requires a satisfactory case to be made out. Whether that is done must depend always on the facts of each case.
Judgment affirmed.