
    Knapp against Knapp.
    Proof that a will executed by a deceased person was said by him, a month previous to his death, to be in his possession in a certain desk at his house: that he was then very aged and feeble: that his housekeeper was a daughter having an interest adverse to the will, and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator’s death or of a fraudulent destruction in his lifetime to authorize parol proof of the contents.
    Appeal from supreme court. Action for the partition of land. The plaintiff claimed an interest as an heir-at-law of Samuel Knapp, deceased, as tenant in common with the d.efendants, whom she also alleged to be heirs of said Knapp. The defendant denied the tenancy in common, and alleged that he owned the land in severalty, by virtue of the last will and testament of Samuel Knapp, deceased. Upon the trial at Tompkins circuit, before Mr. Justice Morehouse, it was admitted that Samuel Knapp died seised of the premises in question, July 6, 1847, and that the parties to this action were his children and heirs-at-law. The defendant then proved, by two witnesses, that twelve or fourteen years previous to the trial, Samuel Knapp duly executed a will, and that they were the subscribing witnesses thereto, and that he took the will, from the office of the scrivener who drew it, into his own possession. They also proved his competency. It was also proved that on the fourth of March next previous to his death, Knapp told a witness that he had made a will, and that he had it safe; he spoke of certain provisions in it in favor of the defendant. Another witness testified to a conversation with Knapp, at the end of May or first days of June previous to his death, at his house and in his own room, upon the premises in question. He said that he was very feeble and should stay but a little while: that his will, deeds, and other papers would be found in his desk after he was gone. He was then a widower., eighty years old, and very feeble. His daughter the plaintiff kept house for him. The defendant then proved that three days after his father’s death, he made search among his papers for the will, all the heirs being present. The desk was searched; three deeds, some other papers and some money were found in it, but no will.
    The defendant, after showing notice to produce the will, offered to give parol evidence of its contents, and that the premises in question were devised to him thereby. The judge excluded the evidence on the ground that it was not shown that the will had been fraudulently destroyed before the testator’s death, or lost or destroyed after his death. The defendant took an exception. The plaintiff had a ver-
    
      diet upon the issue, and judgment establishing the rights of the parties as heirs-at-law, which having been affirmed at general term in the sixth district, the plaintiff appealed to this court.
    The opinion of the supreme court was as follows:
    By the court, Mascot, J.
    It was well settled at common law by a long series of adjudications in the courts in England, and which have been followed by the courts of this state, that the presumption of law is, that a will proved to have had existence, and not found at the death of testator, was destroyed animo revocandi. (Betts v. Jackson, 6 Wend., 173; Idley v. Bowen, 11 Wend., 227.) And our statute has placed this matter beyond all cavil and doubt. It is as follows: “No will of any testator, who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the death of the testator or be shown to have been fraudulently destroyed in the lifetime of the testator; nor. unless its provisions shall be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.” (2 R. S., 68, § 67.) This statute recognizes the former common law rule, by requiring proof either that the will was in existence at the time of the death of the testator, or that the legal presumption that the testator destroyed it animo revocandi be overcome by satisfactory proof that it was fraudulently destroyed in the lifetime of the testator. I presume it will not be insisted in the case under consideration that there is any proof in the case to show the will in question in existence at the time of the testator’s death. I have not been able, at any rate, after a careful examination of the evidence in the case, to discover any proof of this fact. The question arises, then, had the defendant, at the time he made his offer to go into evidence to - prove the contents of the will, and to prove it as a lost or destroyed will, shown by evidence that the wall had been fraudulently destroyed in the lifetime of the testator? If not, he was not entitled to go into evidence to prove it as a lost or destroyed will. I must say, after a careful examination and consideration of the evidence upon this branch of the case, I think the defendant failed to establish this branch of his issue so as to entitle him to go into evidence to prove' the will as a lost or destroyed will. It is true, as was contended by the counsel for the defendant, that it is a fact for the jury ultimately to pass upon, and find whether the will is, or is not, shown to have been fraudulently destroyed; or rather this becomes ultimately a question for the jury in all cases where the party adduces sufficient evidence in the case to entitle him to go to the jury upon the question. If, on the contrary, the evidence so far fails to make out this fact that the court would feel itself constrained to set aside the verdict of the jury, if they were to find the fact in favor of the party seeking to show the will fraudulently lost or destroyed, then the court upon the trial may properly refuse to leave this question to the jury; and even do what was done by the learned justice upon the trial of this cause—arrest the trial at this point by refusing to permit the party to go into evidence to prove the will. I am inclined to think, therefore, that the justice ruled correctly in excluding the evidence offered by the defendant’s counsel to prove the contents of the will in question, and it follows as a consequence that a new trial should be denied; for there was nothing left for the judge to do but to direct a verdict for the plaintiff, which he did do.
    
      B. Davis Noxon for the appellants.
    
      Alexander 8. Divert for the respondent.
   Foot, J.

After a careful examination of the testimony in this cause, I am satisfied that there was not sufficient evidence to authorize a submission to the jury of the question whether the will in controversy was in existence at the death of the testator; and a fortiori not sufficient to justify proof of its contents.

I concur in the views, of the facts and law of the case, taken by the supreme court, and neatly and appropriately expressed by Mr. Justice Mason.

The counsel for the appellant directed our attention to, the rule that the presumption of the revocation of a will, resting on the fact that it could not be found after the testator’s death, is rebutted by proof that the will before his death was really or practically in the possession of a person whose interests were adverse to it, and then argued, that the respondent was such person in this case. But the bill of exceptions furnishes no proof that the will, in any aspect, was ever in her possession. It can only be said on the testimony, that by living with her father, and he being old and feeble, she had facilities for rifling his desk and destroying his will.

Judgment affirmed with costs.  