Chalmers, J.,
delivered the opinion of the court.
A few days after the death of P. W. Tucker, there was found among his private papers a will bearing date about eighteen months before his death, perfect in all its parts, except that the name had been torn from it. By its provisions a considerable portion of his estate was devised to his niece, Miss Mary'M. Whitehead, and the residue directed to be equally divided among his brothers and sisters. The deceased was a bachelor, and his brother, Thomas M. Tucker, was known to have had [605]*605free access to his papers during the period intervening between his death and the finding of the mutilated will. The niece, believing that the mutilation had occurred after death, and by the hand of a spoliator, offered the will for probate, and upon proof satisfactory to the clerk and the Chancellor, it was duly admitted to probate in common form in the Chancery Court of Clay County. Subsequently a portion of the heirs-at-law, including the brother towards whom suspicion pointed as the mutilator of the document, instituted this proceeding for an issue of devisavit vel non. A large mass of testimony was adduced on either side, which resulted in a verdict in favor of the validity of the will, and from a decree in accordance with this verdict this appeal is prosecuted by the contestants. The evidence was conflicting, and if no error of law was committed we should not feel called upon to disturb the verdict. We will examine the more important errors assigned.
First, there was no error in permitting the proponent, who was the principal legatee under the will, to testify in support of it. Kelly v. Miller, 39 Miss. 17. The point is decided the same way, though under statutes the phraseology of which is not identical with ours, in Massachusetts and Missouri. Shailer v. Bumstead, 99 Mass. 112 ; Garvin v. Williams, 50 Mo. 206. In issues of this character, it seems that the proponents and the contestants of the will, are alike competent witnesses. The contestant was admitted to testify without objection in Mullins v. Cottrell, 41 Miss. 291, and though we find the point expressly decided in very few cases, yet an examination shows that it has been quite generally done without objection, both in this country and in England.
Second, there was no error in admitting the parol declarations of the deceased, relative to the fact of his having made a will and of the contents of it, and of his affection for his niece, and of his testamentary intentions and desires, and of what he had done to make them effective. These declarations extended from the date affixed to the will up to within four days of the testator’s death, a period of eighteen months. There are few questions in the law upon which the authorities are more hopelessly in conflict than upon the admissibility of the declarations of a deceased testator in support or in rebuttal [606]*606of a supposed revocation of a testamentary paper. It has engaged the attention and elicited the logic of the greatest jurists who have adorned the bench of this or any country. Against the admissibility of such evidence are to be found the names of Kent and Story and Livingston, and in favor of it those of Walworth and Ruffin and Lumpkin and Cooley. Certainly we can hope to add nothing to the strength of an argument, on either side, which has already been exhausted by such men as these. Whatever may be the true rule where the act which the law accepts as itself evidence of a revocation is undoubtedly shown to have been done by the testator, we think it clear that testimony such as was offered here should always be received where, as in this case, it is uncertain whether the act was committed by the testator, or was the unauthorized or criminal act of a spoliator. The law makes the destruction or mutilation of a will by the testator sufficient evidence of a design to revoke it, and whether any declarations by him, other than those which accompany the act and thereby become a part of the res gestee, should be receivable in evidence, to contradict or explain the act, may well admit of doubt; but where the fact that he was the author of the destruction or mutilation is itself first presumed, from the place where the paper is found, and upon this presumption there is built lip the further presumption that it was done animo revoeandi, it would seem that something more than presumptions should be let in. In such a case it is the part of wisdom to open the doors as wide as possible for the reception of every species of evidence at all calculated to advance the discovery of truth, since not to do so must in a great number of cases result in defeating the will of tha-deceased by accident or fraud. The evils which may spring from the introduction of parol proof in such a case are less than those- which must be wrought by its exclusion. We append a few of the authorities permitting the introduction of the declarations of the decedent in this class of cases, an examination of which will lead to those holding the opposite view. In the first case cited the argument on both sides is well summed up in the principal and in the dissenting opinions. Collagan v. Burns, 57 Maine, 449; Lawyer v. Smith, 8 Mich. 411; Weeks v. McBeth, [607]*60714 Ala. 474; Patterson v. Hickey, 32 Ga. 156; Steele v. Price, 5 B. Mon. 58; Youndt v. Youndt, 3 Grant’s Cases (Penn.), 140; Tynan v. Paschal, 27 Texas, 286.
Third, there was error in admitting on the trial of the issue of devisavit vel non the record of the probate of the will in common form, and in instructing the jury that such probate was to be accepted prima facie as establishing its validity. The probate had taken place under the Code of 1871, by the provisions of which the proceeding was wholly ex parte, and not thereafter receivable in evidence in any future contests concerning the will. Edwards v. Gaulding, 38 Miss. 118, 163. By § 1969 of the Code of 1880, the probate of a will in common form is expressly made prima facie evidence of its validity in all future contests ; and, while we do not doubt the power of the legislature to apply this new rule of evidence to such probates as had already been had, we do not think that such was their intention here. Under the Code of 1880, all persons interested may become parties to the proceeding for a preliminary probate, and the proponent of the alleged will is compelled to cite all those who have availed themselves of the provisions of § 1970 by filing a caveat against the probate. It seems eminently proper that a probate which takes place under such a system should be accepted as prima facie correct in all subsequent contests, whether in fact the opponents of the will have made themselves parties or not, since having the right by an easy process to compel the opposite party to cite them, they cannot complain if it has not been done. But to apply the new rule to a procedure already completed under a system which gave them no such right might work the greatest injustice, and nothing short of an express legislative declaration could warrant us in giving such a construction to the statute. Not only does the present law make the preliminary probate prima facie evidence of the validity of the will, but it permits in all future contests the proof taken on such preliminary probate to be read in evidence.
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Chalmers, J.,
delivered the opinion of the court.
A few days after the death of P. W. Tucker, there was found among his private papers a will bearing date about eighteen months before his death, perfect in all its parts, except that the name had been torn from it. By its provisions a considerable portion of his estate was devised to his niece, Miss Mary'M. Whitehead, and the residue directed to be equally divided among his brothers and sisters. The deceased was a bachelor, and his brother, Thomas M. Tucker, was known to have had [605]*605free access to his papers during the period intervening between his death and the finding of the mutilated will. The niece, believing that the mutilation had occurred after death, and by the hand of a spoliator, offered the will for probate, and upon proof satisfactory to the clerk and the Chancellor, it was duly admitted to probate in common form in the Chancery Court of Clay County. Subsequently a portion of the heirs-at-law, including the brother towards whom suspicion pointed as the mutilator of the document, instituted this proceeding for an issue of devisavit vel non. A large mass of testimony was adduced on either side, which resulted in a verdict in favor of the validity of the will, and from a decree in accordance with this verdict this appeal is prosecuted by the contestants. The evidence was conflicting, and if no error of law was committed we should not feel called upon to disturb the verdict. We will examine the more important errors assigned.
First, there was no error in permitting the proponent, who was the principal legatee under the will, to testify in support of it. Kelly v. Miller, 39 Miss. 17. The point is decided the same way, though under statutes the phraseology of which is not identical with ours, in Massachusetts and Missouri. Shailer v. Bumstead, 99 Mass. 112 ; Garvin v. Williams, 50 Mo. 206. In issues of this character, it seems that the proponents and the contestants of the will, are alike competent witnesses. The contestant was admitted to testify without objection in Mullins v. Cottrell, 41 Miss. 291, and though we find the point expressly decided in very few cases, yet an examination shows that it has been quite generally done without objection, both in this country and in England.
Second, there was no error in admitting the parol declarations of the deceased, relative to the fact of his having made a will and of the contents of it, and of his affection for his niece, and of his testamentary intentions and desires, and of what he had done to make them effective. These declarations extended from the date affixed to the will up to within four days of the testator’s death, a period of eighteen months. There are few questions in the law upon which the authorities are more hopelessly in conflict than upon the admissibility of the declarations of a deceased testator in support or in rebuttal [606]*606of a supposed revocation of a testamentary paper. It has engaged the attention and elicited the logic of the greatest jurists who have adorned the bench of this or any country. Against the admissibility of such evidence are to be found the names of Kent and Story and Livingston, and in favor of it those of Walworth and Ruffin and Lumpkin and Cooley. Certainly we can hope to add nothing to the strength of an argument, on either side, which has already been exhausted by such men as these. Whatever may be the true rule where the act which the law accepts as itself evidence of a revocation is undoubtedly shown to have been done by the testator, we think it clear that testimony such as was offered here should always be received where, as in this case, it is uncertain whether the act was committed by the testator, or was the unauthorized or criminal act of a spoliator. The law makes the destruction or mutilation of a will by the testator sufficient evidence of a design to revoke it, and whether any declarations by him, other than those which accompany the act and thereby become a part of the res gestee, should be receivable in evidence, to contradict or explain the act, may well admit of doubt; but where the fact that he was the author of the destruction or mutilation is itself first presumed, from the place where the paper is found, and upon this presumption there is built lip the further presumption that it was done animo revoeandi, it would seem that something more than presumptions should be let in. In such a case it is the part of wisdom to open the doors as wide as possible for the reception of every species of evidence at all calculated to advance the discovery of truth, since not to do so must in a great number of cases result in defeating the will of tha-deceased by accident or fraud. The evils which may spring from the introduction of parol proof in such a case are less than those- which must be wrought by its exclusion. We append a few of the authorities permitting the introduction of the declarations of the decedent in this class of cases, an examination of which will lead to those holding the opposite view. In the first case cited the argument on both sides is well summed up in the principal and in the dissenting opinions. Collagan v. Burns, 57 Maine, 449; Lawyer v. Smith, 8 Mich. 411; Weeks v. McBeth, [607]*60714 Ala. 474; Patterson v. Hickey, 32 Ga. 156; Steele v. Price, 5 B. Mon. 58; Youndt v. Youndt, 3 Grant’s Cases (Penn.), 140; Tynan v. Paschal, 27 Texas, 286.
Third, there was error in admitting on the trial of the issue of devisavit vel non the record of the probate of the will in common form, and in instructing the jury that such probate was to be accepted prima facie as establishing its validity. The probate had taken place under the Code of 1871, by the provisions of which the proceeding was wholly ex parte, and not thereafter receivable in evidence in any future contests concerning the will. Edwards v. Gaulding, 38 Miss. 118, 163. By § 1969 of the Code of 1880, the probate of a will in common form is expressly made prima facie evidence of its validity in all future contests ; and, while we do not doubt the power of the legislature to apply this new rule of evidence to such probates as had already been had, we do not think that such was their intention here. Under the Code of 1880, all persons interested may become parties to the proceeding for a preliminary probate, and the proponent of the alleged will is compelled to cite all those who have availed themselves of the provisions of § 1970 by filing a caveat against the probate. It seems eminently proper that a probate which takes place under such a system should be accepted as prima facie correct in all subsequent contests, whether in fact the opponents of the will have made themselves parties or not, since having the right by an easy process to compel the opposite party to cite them, they cannot complain if it has not been done. But to apply the new rule to a procedure already completed under a system which gave them no such right might work the greatest injustice, and nothing short of an express legislative declaration could warrant us in giving such a construction to the statute. Not only does the present law make the preliminary probate prima facie evidence of the validity of the will, but it permits in all future contests the proof taken on such preliminary probate to be read in evidence. We can scarcely suppose that the legislature intended that a law like this should apply to a procedure already past, and in which opposing parties had no opportunity to be heard.
Fourth, the views announced sufficiently indicate perhaps [608]*608the action which should have been taken upon the charges asked on either side. The burden of proof was on the proponent throughout, and the jury should have been so informed. The third instruction given for the proponent, if we understand it, announced that if the jury thought from the evidence that there was “ a reasonable inference ” that the testator had not torn his name from the will, the law raised no presumption that he had done so, — a proposition which it seems to us was as harmless to the contestants as it was useless to the proponent, since it was but the announcement of a self-evident truism. We confess our inability to understand the fourth instruction given for the proponent. It seems to declare that if the jury believed from the evidence that the name was “presumably” torn off by the brother of the testator, or by any other person, “ the law will not presume ” that the testator did it. Such an instruction could only confuse and not enlighten the jury, and should not have been given. The first, second, eleventh, twelfth and thirteenth instructions asked by the contestants, should have been given. The fourth, seventh, fourteenth, fifteenth and sixteenth were properly refused. There was no question of a nuncupative will or of the sanity of the testator before the jury, and therefore the seventh and sixteenth instructions asked were wholly inapplicable.
Reversed and a-new trial awarded.