5 Ohio St. 290 | Ohio | 1855
In the case of Morningstar v. Selby, 15 Ohio Rep. 345, it
The general assembly, at their next session after the publication of the decision of the court in the case of Morningstar v. Selby, passed a law containing the following recital (46 Ohio Laws 66) :
“ Whereas, doubts exist whether, by virtue of the provisions*292 of the act relating to wills, etc., the courts of common pleas, as courts of probate, have power to take the proof and admit to probate duly executed last wills and testaments, which have been lost, spoliated, or destroyed, but not revoked, and which cannot be produced for probate; therefore, for the purpose of removing all'doubts upon that subject,” the general assembly then provided:
“ Sec. 1. That the several courts of common pleas in this State, * * * shall have full power and authority to admit to probate any last will and testament, * * * not revoked at the death of the testator, where such original will has been lost, spoliated or destroyed subsequently to the death of such testator, and cannot be produced in court,” etc. This section is the forty-seventh section of the present act relating to wills. Swan’s Stat., rev. ed., 1030.
After providing in this law for the mode of taking proof of the execution and contents of such lost or spoliated will, the fourth section provides:
“ If the court upon such proof shall be satisfied that such last will and testament was duly executed in the mode provided by the law, in force at the time of its execution, that the contents thereof are substantially proven, and that the same is unrevoked at the death of the testator, and has been lost, spoliated, or destroyed, subsequent to the death of such testator, such court shall find and establish the contents of such will, as near as the same can be ascertained, and cause the same, and the testimony taken in the case, to be recorded.”
Now, it is beyond all doubt, that the whole subject of lost, destroyed and spoliated wills, was before the general assembly for its consideration and legislation; and that, as expressly as language could do, they confined their legislation to wills existing at the decease of the testator, and subsequently lost, spoliated or destroyed. They prescribe the notice to be given of the proof of such wills, the mode of taking the proof, the final order of the court establishing the contents of the will, and the legal effect of the contents when so-found and recorded. If all this legislative machinery was to establish a will lost after the death of the testator, why is it that all provision whatever is omitted for the establish
This court cannot, by construction, enlarge the terms of a statute so studiously limited and circumscribed. Prior laws omitted wholly to provide for the subject; so that whatever doubt might be entertained of the jurisdiction of probate courts, when the case of Morningstar v. Selby was decided, the existing legislation was intended to cover the whole ground, and will not permit a W'ill lost, spoliated or destroyed, to be established, unless it existed subsequently to the death of the testator.
Judgment below reversed.