
    Shumway versus Holbrook.
    A will, of which there has been no probate, is inadmissible as evidence of a title ta land 5 and it is not competent to the person claiming under it, to prove that it was fraudulently destroyed, and to give evidence of its contents.
    A will may be proved more than twenty years after the death of the testator, in order to establish a title to real estate.
    If an heir enters, showing by his declarations or acts, that he intends to exclude his co-heirs, he is an abater; but without such declarations or acts, his entry inures to the benefit of ail the co-heirs.
    This was a writ of entry, in which Danforth Shumway de manded one undivided twelfth part of a tract of land, counting on his own seisin within thirty years, and a disseisin by the tenant.
    David Shumway, the father of the defendant, died seised of the land in fee in May 1796, leaving the demandant and eleven other children his heirs. Elijah Shumway, one of them, was living on the land at the time of his father’s decease, and continued to live there, occupying the land, until he conveyed the whole of it to the tenant; who thereupon entered, and who has continued to occupy to the present time.
    At the trial, before Wilde J., the tenant offered in evidence a copy of a will of David Shumway, by which, as it was said, the whole tract was devised to Elijah, and legacies given to the other children. The will had never been proved in the court of probate, but the tenant offered paroi evidence to show, that it had been assented to by all the children ; that some or all of the legacies had been paid ; that all the children had consented that the will should not be proved, but be deposited withShumway, so as to save the expense of settling the estate in the court of probate ; and that the same Shumway had since fraudulently destroyed the will, in order to defeat the estate of Elijah This evidence was rejected by the judge.
    The demandant offered no proof of the entry of any one of the heirs except Elijah ; and it was contended by his counsel, that the possession of Elijah, though claiming to hold under the will, was to be considered as the actual seisin of the othet neirs
    A verdict was found for the demandant. If the evidence offered by the tenant ought to have been admitted, or if the proof of the demandant’s seisin was insufficient to enable him to recover in the present form of action, a new trial was to be granted; otherwise judgment was to be entered according to the verdict.
    Lincoln, for the tenant, contended,
    1. That the evidence offered, to prove that the will had been destroyed, should have been admitted ; and after this it would have been competent for the tenant to show the contents of the will. Rex v. Morton, 4 M. & S. 48; Rex v. Metheringham, 6 D. & E. 556; Jackson v. Woolsey, 11 Johns. Rep. 446. The case of Jackson v. Hasbrouck, 12 Johns. Rep. 192, is parallel, m most of the circumstances, to the present, and it is to be inferred, that paroi evidence of the contents of the will in that case would have been admitted, if due diligence had been used to find the will.
    2. The demandant has never had seisin, and cannot maintain this action. He should have had actual seisin. Wells v. Prince, 4 Mass. Rep. 64; Brown v. Porter, 10 Mass. Rep. 100; Warren v. Childs, 11 Mass. Rep. 222; 1 Chit. Pl. 191. Elijah Shumway was in by abatement on the death of the testator. His conduct shows his intention, and if he was in as a purchaser, or a disseisor, and not as heir, then the demandant had no seisin. Suppose that Elijah was ignorant of the contents of the will ; if it appears by his acts subsequent to the death of his ancestor, that he held for himself only, it is equivalent to his declaring at the death of his ancestor that he so held. Fishar v. Prosser, Cowp. 217; Cummings v. Wyman, 10 Mass. Rep. 464; Doe v. Cook, 7 East, 299; l Saund. 319, note 1. In the case of Fishar v. Prosser, it was held that the possession of one tenant in common, as tenant in common, can never bar his companion ; but if the tenant in common in possession claims the whole land as his own, it will be an ouster.
    
      Hastings and G. Davis, for the demandant.
    As to the first point, the English decisions are inapplicable. The case of Dublin v. Chadburn, 16 Mass. Rep. 433, is conclusive, that m this Commonwealth a will not proved in the probate court is of no avail. The second point is equally clear, that the entry of Elijan Shumway immediately after the death of his father was the entry and seisin of all the heirs. 2 Bl. Comm. 182, 194; Ford v. Grey, 1 Salk. 285.
    
      Lincoln, in reply,
    cited Jackson v. Walsh, 14 Johns. Rep. 407, to show that proceedings are had in New York similar to those in this Commonwealth, in relation to the probate of wills. [Parker C. J. In this Commonwealth a will must be proved in the probate court in order to pass land. It is not so in New York.]
   The opinion of the Court was delivered at an adjourned term, m November.

Per Curiam.

This case presents two questions ; first, whether the paroi evidence offered by the tenant respecting the will, and rejected, was competent evidence ; and, secondly, whether there was sufficient evidence of seisin of the demand-ant to enable him to maintain this action.

It is clear, that, by our statute, no will devising land can be used as evidence in a court of common law, to prove the title of any person claiming under it, until it is proved and allowed in a court of probate. And this is a convenient rule of evidence. In England the practice is different. There a will is to be proved in a writ of entry, like a deed. A case respecting a will has been cited from Johnson’s Reports ; but the law of New York is like the English law, except that it allows a particular mode of perpetuating the evidence of a will. It does not exclude other evidence. This is not a new question, but one which is already well settled.

The second question is one of more difficulty, ■—whether the demandant had seisin, or whether Elijah Shumway was an abater. In Smales v. Dale, Hob. 120, it is held, that the entry of one tenant in common, claiming all expressly, cannot dis possess his fellow, but that such entry shall be considered as made under the lawful title; and therefore a copartner, joint tenant or tenant in common, can never be disseised by his fel iow, but by an actual ouster. In Co. Lit. 243 b, 473 b, however, it is said that a parcener may abate ; and we are of this opinion. Where a person enters generally, without making any declaration of his intention, the law presumes that he enters by his legal title ; but if he says that he enters to exclude others having the same title with himself, or if he does an act showing an intention to keep them out, he is an abater as much as a stranger would be. The doctrine in Hobart, therefore, is t > be received with some qualification. But the present case was decided rightly upon the evidence. Elijah Shumway was upon the land at the death of his father ; any declaration or act showing his intention to abate might have been given in evidence to the jury to disprove the demandant’s seisin ; but no such declaration or act of Elijah having been proved, his entry inured to all the heirs, and the verdict must remain.

If a will can be found, it may be proved in the probate office at any time, in order to establish a title to real estate. It differs from an administration of personal property, which cannot be originally granted upon the estate of any person after twenty years from his decease.

Judgment according to the verdict. 
      
      
        Laughton v. Atkins, post, 549. In Massachusetts, whoever has a right to offer a will in evidence, or to make title under it, may insist on having it proved. Stebbins v. Lathrop, 4 Pick. 42. A codicil, fraudulently destroyed, may be established upon proof, by secondary evidence, of its contents Clark v. Wright, 3 Pick. 67.
     
      
      
        Ricard v. Williams, 7 Wheaton, 120; Carothers v. Dunning, 3 Serg. & R. 373; Clapp v. Bromaghan, 9 Cowen, 556.
     
      
       Mr Justice Jackson, at the argument, said there was a case in the county of Essex, perhaps thirty years ago, where it was found that the widow of a testator must hold land under the will, which had not been proved. The will was therefore carried to the probate office, but more than twenty years being elapsed since the death of the testator, the judge of probate refused to allow it; but upon an appeal the decision was reversed, as a will must be proved and allowed, in ordm to convey land.—Reporter.
      
     