Lane's Will

32 Ky. 106, 2 Dana 106, 1834 Ky. LEXIS 30

• Court: Court of Appeals of Kentucky
• Decided: April 19, 1834
• Status: Published

Opinion

Judge Underwood

delivered the Opinion of the Court.

A paper purporting to be the last will and testament of Edward Lane, deceased, was proved and admitted to record in the county court clerk’s office of Anderson.

Watts fee. prosecute a writ of error with a view to-set aside the order of the county court, establishing the will, and directing it to be recorded.

The original will is lost. The executors therein named, and the clerk of the court in whose office the law directs the original to be kept, state on oath, that they know not what has become of it. The only question worthy of consideration, under such circumstances, is, whether this court, on the production of a sworn copy, and in the absence of the original, should receive proof of the due execution of the original, and affirm the order of the county court.

We cannot hesitate to dispense with the production of the original will, and to receive proof of its due execution. The law does not require impossibilities. Accidents ought not to destroy the rights of parties. It does not appear to be the fault of the executors, or of the clerk, that the original is not produced, and as its execution, in conformity to the requirements of the statute, has been duly proved, the order of the county court must be affirmed, with costs.