may indicate; or not so soon as to imply irreverent haste, and not so remote as to suggest special motive for the delay.2 3. The executor is presumed to have the custody of the will; and he is the only person who can in the first instance properly prove the same. But if there is any unreasonable delay in his taking proceedings in the matter, any one interested may petition the probate court to cite him before it, to show cause why he should not assume the execution of the trust reposed in him In some of the early writers on wills, four months from the decease of the testator is named as the limit of the proper delay for the production of the will; and that in the event of the will, which was known to exist, not being produced for probate in that time, the Ordinary should sequester the goods of the deceased. Godolph. pt. 1, ch. 20, § 3; 1 Wms. Exrs. 291. The probate courts in this country, instead of sequestering the goods, will grant letters of administration to any proper person applying therefor. The time is now limited, in England, to six calendar months, by affixing a penalty for any one to interfere with the estate or effects of any deceased person within six calendar months after such decease, &c. 55 Geo. 3, ch. 184, § 37. By a modern regulation of the Prerogative Court of Canterbury, where probate of a will is applied for more than five years after the decease, some explanation should be given for the delay. In the Goods of Darling, 3 Hagg. 561; 1 Wms. Exrs. 292. In some of the American states there is no limit to the time beyond which a will cannot be proved. It is generally considered that a will more than thirty years old will require no proof where the title of real estate is concerned, and the devise is in favor of the possessor. 1 Greenl. Evid. §§ 21, 570. But in the American states, where the probate of the will more commonly extends to real as well as personal estate, the production of the will without probate will be of no avail, however ancient. See, as to the English rule, Doe v. Wolley, 8 Barn. & Cress. 22; Jackson v. Christman, 4 Wend. 277, 282; Hall v. Gittings, 2 Har. & Johns. 112. By the standing rules of the present English Court of Probate, the several registrars of the court are prohibited from issuing probate or letters of administration with the will annexed in less than seven days, or simple letters of administration in less than fourteen days after the decease of the testator or intestate; and where a grant of probate or administration is for the first time applied for after the lapse of three years from the death of the decedent, the reason of the delay is to be certified, and an affidavit may be required, or the question referred to the judge. by the will, or else refuse the same; and, by producing the will in court, enable the court to grant administration with the will annexed.3 4. Any person interested in the estate, as devisee or legatee under the will, or as creditor, probably, may petition for such citation against the executor. And it has been said that any one expecting a legacy may do this, "to the intent that they may thereby be certified whether the testator left them a legacy." 5 * Swinb. pt. 6, § 12, pl. 1; see also 1 Salk. 309; 1 Wms. Exrs. 287. It seems to have been the early practice in England, upon return of the citation, to give the executor, if he desired it, longer time to deliberate whether he would accept the trust or not, and in the mean time to grant letters ad colligendum, for the purpose of collecting the effects of the deceased; but no such delay would now be expected. And where any considerable time has elapsed since the decease of the testator or intestate, letters of administration may be granted at once, even where a will is supposed to exist; to continue only till the executor shall prove the will, or some other steps shall be taken to compel its production. Such administration will answer all the purposes of the former English administration ad colligendum, and will be, like that, temporary, if the executor proves the will, or be liable to be qualified by the production and proof of the will by any on one. Swinb. pt. 6, § 4; 1 Wms. Exrs. 241, 242. Where the executors decline to offer a will for probate, any one claiming an interest under it may present it for probate; but it should appear that he is not a mere intruder. Enloe v. Sherrill, 6 Iredell, Law, 212; Stone v. Huxford, 8 Blackf. 452. So also a slave to whom his freedom is given by the will. Ford v. Ford, 7 Humph. 92. 4 Swinb. ibid. * Godolph. pt. 1, ch. 20, § 2; 1 Wms. Exrs. 287. In the State of New York, it is held that an application for the probate of a will of personalty may be made by the executor or any one claiming an interest under the will. And where the executor institutes the proceedings, any such person may become a party thereto, at his election, or he may become a party to an appeal, although not a party in the Surrogate's Court; and this should be done by petition for that purpose. Foster v. Foster, 7 Paige, 48. Surrogate's courts are regarded as possessing the power, independent of the statute, to compel the attendance of witnesses, the production of wills, or other writings connected therewith, or with the proceedings of the court, and to commit parties for contempt in disobeying such orders. Brick's Estate, 15 Abbott's Pr. 12. 5. If the executor has not the custody of the will, it is his duty to inquire for the proper custodian. And any one having the instrument in possession may be compelled, by citation from the probate court, to come before it and surrender the same, or to give testimony of any knowledge he may have in regard to its existence or place of deposit. And where one is shown to have had the custody of a will, he is presumed still to retain it, and will be held responsible for the same unless he purge himself upon oath." 6. And where a will is lost or mislaid, whether accidentally or by design, its contents may be proved, and probate granted of the same upon such evidence as is satisfactory to the court. The circumstances are almost infinitely various under which such questions are liable to come before courts of probate. It will be the duty of such courts to receive the best attainable evidence of the existence and deposit of the will of any testator, deceased, and to establish the same, by probate in due form, whenever all reasonable questions of the existence and continuing force of the same, until the time of such decease, is adduced. The cases are too numerous, where questions of this character have been discussed, to be here specifically referred to. Many of them will be found in the former part of this work. It has Bethun v. Dinmure, 1 Cas. temp. Lee, 158; Swinb. pt. 6, ch. 12, pl. 2; 1 Wms. Exrs. 288. An attorney or solicitor, with whom a will is deposited, cannot refuse to surrender it for probate, on the ground that the balance of his account against the testator is not paid, although it may include a charge for drawing the will. Balch v. Symes, 1 Turn. & Russ. 87. 'Ibid. The preceding matters are all provided for in the statutory provisions of many of the states. Purd. Dig. 187, ed. 1853; 1 Wms. Exrs. 288 & Am. n. But where no special statutory provisions exist upon the subject, all these proceedings may be taken by the courts of probate, sua sponte, or upon the suggestion of any person interested, and under those implied powers which attach to all tribunals, whereby they are vested, ex necessitate, with authority adequate to the accomplishment of all their ordinary functions. Ante, Part I. 348-350, 361, & n. been held, that where a will was gnawed to pieces by rats, in the place of its deposit, that probate may be granted upon such proof as is afforded by the memory of witnesses and the remaining fragments. So also where a will is cancelled by the testator, while not of sound mind.10 But it must in all such cases "be shown that an exhaustive search has been made for such missing will, in all places where there is the remotest probability that it would be found, before any secondary evidence can be received of its contents.11 * 1 Jarman, Perk. ed. 231. 10 Rhodes v. Vinson, 9 Gill, 169; 1 Add. 74; Apperson v. Cottrell, 3 Porter, 51. " Jackson v. Hasbrouck, 12 Johns. 192; Fetherly v. Waggoner, 11 Wend. 599. It is scarcely requisite, after what we said in the former part of this work, to caution probate courts against admitting lost wills to probate, unless upon the most unquestionable evidence. There are so many motives which might induce the suppression of a will, with a view to benefit some one, either by adducing proof to enlarge or diminish a bequest, or else to show its entire revocation, in each of which contingencies some supposable interest may be so differently affected as to afford adequate motive for the suppression, that we must always feel more or less doubt how far the application is in all respects bonâ fide. In short, the possible motives for such an act are so infinitely diversified, that it will be always next to impossible to conjecture, and guard against, all possible liability to fraud and imposition. It will thus be always less satisfactory to admit a lost will to probate than if the instrument itself had been produced; and it is safe to act upon that degree of incredulity in all such matters, which will be sure to expose any suppression of it from sinister designs. Ante, n. 8. A copy of an alleged lost will is obviously far more satisfactory than any amount of testimony dependent upon the memory of witnesses, but a copy is not indispensable. 2 Caines, 263; Jackson v. Russell, 4 Wend. 543; Smith v. Steele, 1 Har. & McHen. 419; 2 Har. & Johns. 112; Happy's Will, 4 Bibb, 553. But although the testimony of one witness, or of a copy verified by one witness, may be sufficient to establish the contents of a lost will, it is unquestionably requisite that the due execution of the instrument should be proved, as in ordinary cases. Bailey v. Stiles, 1 Green, Ch. 220, 231. And where the testator made a subsequent will, revoking a former one, and they were both lost, the former will cannot be allowed to stand upon proof of its contents, even where the proof 7. It has been held, that where the will is purposely suppressed or destroyed by the executor, or those interested under fails to show the contents of the later one. The courts of probate in Ireland require an affidavit, setting forth the lost will in hæc verba, in order to grant probate. Coghlan in re, 4 Law Times, N. s. 839. Copies of a will kept by the testator (leaving the original with his solicitor, which was lost) were admitted to probate. Pechell in re, 6 Jur. N. s. 406. The question of granting probate of lost wills continues still to occupy the attention of the English Court of Probate. The court granted probate of the draft of a lost will, being satisfied the original will was in existence after the death of the testator. Podmore v. Whatton, 33 Law J. Prob. 143. But in a very late case, it was held, where probate of the substance of a will contained in the parol evidence of witnesses was asked for, that the court could never act but upon the fullest, most stringent proof. Wharram v. Wharram, 3 S. & Tr. 301. And in this last case it was held, that after the lapse of six or seven years from the death of the testator, where the will was offered for probate, as contained in the testimony of the widow, solely interested under it, her niece and another connected by marriage with the widow, and who had had the custody of the original will, but could not produce it, the court decreed probate, and said, if it had felt otherwise inclined, it would first have required argument upon the legality of giving effect to a will proved by parol evidence under the English statutes, 7 Will. 4 & 1 Vic. ch. 26. And where the person, who acts for the probate, has himself destroyed the instrument, after the death of the testator, although a copy is produced, the court will require the most satisfactory evidence of all the facts necessary to be established. Moore v. Whitehouse, 11 L. T. N. s. Prob. 458. A will destroyed by the heir at law was admitted to probate on proof of the contents by one witness, and the production of a rough draught, the proof of the execution being full. Kearns v. Kearns, 4 Harring. 83. The result of all the American cases upon this point seems to be, that although the courts of probate maintain the general doctrine already stated, that a lost will may be established by the same kind of proof as other lost instruments: 1, by copy; 2, by proof of contents, from memory and recollection; yet in practice, so much severity of scrutiny is exercised, that very few lost wills are established, unless there is reason to believe they were purposely suppressed. In all other cases, the mere fact of the will being lost makes a very clear presumptive case of revocation. Those propounding a lost will must, therefore, assume the burden of showing, 1. That the will was duly executed by the testator; and 2, That it was in existence at the time of his death; or, 3, That it had been accidentally or fraudu |