
    *Jackson, ex dem. J. S. and W. Brown, against Betts.
    UTICA,
    August, 1828
    shown “to “be destroyed, by parol, it must be shown that diligent search was made for To warrant the proof of a Vis* will. nnf
    
      it at the place where it is most likely to be found; as in the desk where the testator usually kept his most valuable papers. 
    
    Proof of a search for, or loss of a paper to warrant secondary evidence of its contents, may be made by the oath of a party in the cause, though he be interested.
    Where the execution of a will is established, there must, in order to revoke it, be some outward and visible sign of revocatfcn, or cancelling animo revocandi.
    
    _ If a man let his will stand till his death, it is his will; otherwise not. It is ambulatory tiU his death.
    A man, when he makes his will, may disregard the claims of his children, and will his property to a stranger, if he be so disposed. •
    The situation of any of his children or grand-children, as to property, and the comparative inadequacy or inequality of a provision for them in his will, are inadmissible to show an express or implied revocation.
    If a will be once duly executed, and once an existing will in the hands of the testator, unless there be evidence of its having been cancelled or otherwise revoked by the testator, the law presumes its continued existence of the time of his death.
    Where facts are not disputed, the law on those facts is to be declared by the court. But where the law and the fact are so blended that they cannot be separated, the jury pass on both, under the advice of the court.
    Where facts are conceded or fully established, it is the duty of the judge to state the law arising on the facts to the jury, whose duty it is to receive it from the court. If he err, the supreme court will correct the error; but counsel have no right to argue to the jury a question upon facts which the judge pronounces to leave no question open.
    Proof that a testator after having" made his will, took certain papers out of his desk where he kept all his valuable papers, and burnt the papers taken out, without showing that the will was among them, is not sufficient evidence to go to the jury, upon the question of revocation, even in connection with the fact -that the will could not be found at the testator’s death. Nor should counsel be allowed to urge these matters to the jury as evidence from ^which they may infer a revocation.
    Whether it would be competent evidence, in order to repel proof which might admit a presumption that a will had been cancelled, that the testator went to the house of a friend, and requested him to draw a codicil to his will, but which was not done ? Qteere.
    
    What shall be taken as part of the res gesta oí a transaction, and not a mere declaration Discussed by counsel on principle and authority.'
    Ejectment for lands in the town of Brunswick, Rensselaer county, on a joint and several demise from all and each of the three lessors of the plaintiff tried at the Rensse]aer cjrcujt before Woodworth, J. The cause went down there for a trial a second time, on the order of this court granting a new trial, the ground of which may be seen in 6 Cowen, 377, S. C.
    On the. trial, the lessors claimed as devisees, not as heirs, of Benajah Brown deceased ; and the defendant admitted that the lessors were the children of Benajah Brown, who died seised of the premises in question in Hay, 1822, and that the defendant was in possession when this suit was brought.
    The plaintiff then called William L. Marcy as a witness, who testified, that in the autumn of 1816, the deceased called *on him to draw a will for the deceased, which the witness did ; and the deceased executed it in presence of three witnesses, and those three witnesses signed their names to the will in the presence of the deceased, and of each other. The witness was one of the three, and James Mallory another, and who was the third he could not recollect; but, from the circumstance of the deceased depending on him to see that the will was properly executed, he had no doubt the third witness was credible. James Mallory, called by the plaintiff, swore that the will was made November 9th, 1816, at the office then occupied by the witness and Mr. Marcy, at Troy; that after it was executed, on the same day, the deceased delivered it to the witness for safe keeping, and the witness gave the deceased a receipt for it, which the witness now had. In the summer or fall of 1821, the deceased took the will from the witness, stating that he the deceased, wished to make some alteration. Since the death of the deceased, the defendant told the witness that James Brown, one of the lessors, had been up to Brunswick from Westchester, and looked for the will in the desk where Brown supposed it was left, and it could not be found there. Ezra Lockwood, called by the plaintiff, testified that the deceased was at the witness’ house in Poundridge, (Westchester,) in July, 1821, and he, at the request of the deceased, drew a codicil to the will of the deceased, which was, at that time, exhibited to the witness, and which he then opened and read. He remembered the witness to the will, Messrs. Marcy and Mallory, but had forgotten the third. The codicil referred and was attached to the will, before the codicil was executed.; and afterwards the codi cil and will were put into the same paper envelope from which the will was taken, and handed.back to the deceased
    The plaintiff then offered to prove by the last witness, that the day before the deceased was taken sick, he called ■ on the witness at his dwelling house in Poundridge, and requested him to draw a codicil to his will. To the admission of this testimony, the defendant objected, unless the plaintiff proved that a codicil was then drawn. The judge admitted the testimony, *on the ground that it was an act of the deceased, and the defendant excepted.
    Lockwood then testified, that the day before the deceased was taken sick, in May, 1822, he called at the witness’ dwelling house in Poundridge, and requested the witness to draw another codicil to his will; but that the witness did not draw one. The will was not then produced ; and the deceased died about two weeks after.
    James Brown, one of the lessors of the plaintiff, was then offered by the plaintiff to prove the loss and due search for the will. He was objected to as incompetent; but admitted, and the defendant excepted.
    Brown testified that he made search for the will in the desk at the deceased’s house in Brunswick, the place where he usually kept his papers, and where he found some of the deceased’s obligations and deeds, and other papers; but could not find his wifi. He made a second and more thorough search in the same place, in which he was assisted by Weed Brown and Albert Lockwood. The search was made a little more than a week after the deceased’s death. He also searched the pockets and pocket book of the deceased, but failed to find it. Cross-examined, he said when the deceased arrived at Poundridge on his last visit, he stopped at Silas Brown’s (one other of the lessors of the plaintiff) where he spent a portion of his time previous to his being taken sick; and another portion of his time he had spent with two of his daughters living in that vicinity. He was taken sick at the witness’ house; where he remained till he died. During his sickness, the witness sent a messenger to. his connexions at Brunswick, inform-mg them of the sickness of the deceased; and Mrs. Ayres, the sister of the witness, went from Brunswick to Pound-ridge with that messenger, and remained with the deceased, taking care of him until his death. About a week after the the deceased’s death, the witness left Poundridge, in company with Mrs. Ayres, and arrived at Brunswick on Saturday, and on the Monday morning following the search was made. He did not know that the deceased’s death was known at Brunswick, until he arrived, had not written informing his connexions there of the death. *Mrs. Ayres had, some time previous to his death, lived in the deceased’s house in Brunswick; and so had Harvey Betts, a nephew of the witness, the son of the defendant, who then occupied the room where the desk of the deceased was. That he found the key of the desk in a chest not locked, in the same house; and on searching, he examined- every part of the desk. He found in the desk quite a large quantity of papers, among which were the notes, deeds and other valuable papers of the deceased.
    The plaintiff then offered parol evidence of the contents of the will, which was objected to, on the ground that the plaintiff had not sufficiently accounted for its non-production. The objection was overruled, and the defendant excepted.
    Mr. Marcy, then called a gain, testified that the will devised one sixth of the deceased’s real and personal estate to each of his sons, James, Weed, Seth, Jotham and Silas; one sixth to James, his son, in trust, to pay the avails, during the life of Benajah, another son of the deceased, to his (B.’s) children, remainder of the one sixth, after his death, to be paid to his children: charging the whole with the payment of $200 to each of the deceased’s daughters, and the like sum to Sanford Selleck, his grandson.
    Mr. Lockwood, called again, testified that the codicil altered the will in nothing, except in giving to James Brown, in trust for Seth and Jotham Brown, what was devised by the will directly to them.
    Hereupon the plaintiff rested; and the defendant then called
    
      Thaddeus Dann, who testified that the deceased had liv- ^ ]jjg jea-t;h, six sons and six daughters, and one grandson, the son of a deceased daughter. That Nancy Ayres, one 0f the daughters, was at that time unmarried, and had from the time of her mother’s death, lived in the family of her father the principal part of the time. Her mother died about two years before. That the witness accompanied the deceased to Poundridge, in April or May, 1822, who took with him on that journey a trunk.
    The defendant then offered to prove, that one of the deceased’s daughters was, at the time of his death, the mother *of a large family of children, and that the father and mother of those children were wholly unable to support them; and the respective situation, as to property, of the other children of the deceased. The plaintiff objected to this evidence as inadmissible, the judge allowed the objection, and the defendant excepted.
    Nancy Ayres, called by the defendant, testified that she is a daughter of the deceased; and lived at his house in Brunswick at the time of his death, when he had been absent about three weeks. He took with him a trunk when he left for Poundridge, which he borrowed of her brother, Weed Brown; took papers with him in his trunk. When she went to put her father’s linen into the trunk, she saw a bundle of papers in it, did not move or examine them, but should judge they were two or three inches thick. For two or three months before her father left home, she thought he seemed to be putting his house in order, and so remarked to her sister. A short time before he left home he was very attentive to the arrangement of his papers at his desk. Once or twice she saw him burn papers, which he took from the desk; and which was the only place he occupied for his papers. It was in the house where he resided, and he had but one desk. Some time before he went away, he took some papers, or something that looked like papers, to Troy. He was 72 years of age in February, 1822, and died in May following.
    The plaintiff, then offered Weed Brown, (one of the lessors of the plaintiff,) to prove search for the will. He was objected to as incompetent, but received; and the defendant excepted.
    He testified that the trunk mentioned by Mrs. Ayres was his; and he examined it in Poundridge, a few days before the deceased died, and while he lay sick. There were two or three loose papers in it; but the will was not there. It was unlocked^ at that time, at his brother Silas’ house. Being cross examined, he said he lent the trunk to the deceased; that he lived in Brunswick, and when he heard of his father’s illness, he went down, and returned before his father’s death, and brought the trunk home with him to Brunswick.
    * The defendant then called Mr. Mallory, (before sworn for the plaintiff,) who said the defendant in the spring or summer of 1822, in Troy, told the witness that James Brown had been up to Brunswick, and searched for the will; and that it could not be found. Mrs. Ayers, again called by the defendant, said a short time before her father left home in 1822, he took something from his desk in a silk handkerchief, which appeared like papers. He appeared to be sly about it; and was going to Troy. Cross-examined, she was not certain they were papers, nor did she see him take the handkerchief from the desk; but he had been to the desk, and had something wrapped in his handkerchief.
    The plaintiff here rested.
    The judge decided, that if the will was duly executed, and once an existing will, and in the hands of the testator, unless there be evidence of its having been cancelled or revoked by the testator, the law presumed its continued existence to the death of the testator. That the facts proved by the defendant were not sufficient, in judgment of law, to warrant the inference that the will had been can-celled or destroyed by the testator, or to justify the jury in finding that the testator revoked his will; and that he should oO state the law to them ; and that the counsel for the defendant could not be permitted to argue to the jury, that these facts alone would justify them in finding that the will had been revoked. To these opinions and decisions the defendant excepted.
    The jury found a verdict for the plaintiff; and a motion was now made in behalf of the defendant for a new trial.
    
      J. Paine, for the defendant.
    The only difference between the case as it now stands, in respect to the proof of a will, and when it was before the court as reported in 6 Cowen, 377, is, that here we have no direct account of any will after the-drawing of the codicil in July, 1821. The testimony of Lockwood, that the deceased called on him respecting a codicil, the day before he was taken sick in 1822, was objected to at the trial as inadmissible to prove anything concerning the will; and being admitted, is now made a point for a new trial. When this matter was before the court on the question * of partition, the propriety of admitting declarations in respect to the revocation of a will was considered ; and it was held, that unless they accompanied and were used to explain an act which might otherwise be equivocal, they were not admissible, because not a part of the res gestee. (Dan v. Brown, 4 Cowen, 483.) The same principle extends to a declaration respecting the existence or continuance of a will. Smith v. Fenner, (1 Gall. Rep. 170, 172,) went one step farther than former cases ; but held that the declaration of a testator must be so near to the time of executing the will as to be a part of the res gestee, or it was not admissible; that other declarations are in the nature of hearsay. In that case the evidence was confined to declarations made immediately after the execution. Subsequent declarations as to the testator!s intentions were overruled. Res gestee mean the surrounding facts of a transaction, which aid our inferences' as to the fact in dispute. The declaration must not be one merely in the abstract; but it must be a fact in a transaction. (1 Stark. Ev. 39, 47.) ■ The declaration must itself be an act or thing done, which is a literal translation of res gestee. Here were no acts done when the application was made to Lockwood. He drew no codicil.
    
      The declaration could not form a part of the res gesta because there were none. It was naked hearsay within the case of Smith u. Fenner. Is such evidence admissible to show the existence of a will ? The evidence cannot be urged in any other view; and receiving it in that view, allows a will of lands to be established or fortified by hearsay ; and trenches directly on the statute of frauds. It is in the face of what this court have twice decided in this very cause. (4 Cowen, 483. 6 Cowen, 377.) James and Weed Brown were incompetent witnesses. At any rate they were inadmissible to prove anything more than the fact of searching for the will, and the place or places, time or times at which search was made; and the proof on this head was premature. The loss could not be proved till the execution and continued existence of the will were fully established up to the time of the testator’s death. That, as we trust we shall be able to show, was a question for the jury; and that it was held to be so in 6 Cowen. Of course * the loss could not be shown to the court as a preliminary to the inferior or parol proof. And not being receivable in that view the parol proof was altogether inadmissible to show the contents of the will. A case for parol evidence was not made out. The loss should have been proved by other witnesses; and at least the question of loss have gone to the jury.
    The evidence offered by the defendant to show the situation of one of the daughters of the deceased, and of her family, ought to have been admitted.
    The decision of the judge that the law presumed the will to have been in existence at the time of the testator’s death, was incorrect. There was no express evidence that the will was in esse when the testator died. This certainly must be shown in some way, or it is not the testator’s will; for it cannot take effect till his death. Up to that time it is ambulatory. (Goodright v. Glazier, 4 Burr. 2512, 2514.) The party who alleges the affirmative must prove it. (1 Stark. Ev. 376.) The statute of wills (1 R. L. 365, § 3,) provides five modes of revoking a devise. One is by declaring the revocation in writing attested, as the devise must be, by three witnesses. The other modes are by burning, cancelling, tearing or obliterating, and either of them may be done in secret as well as in the presence of witnesses If wé rely on a revocation by a Writing, we must prove it. The affirmative lies with us; but it is otherwise in respect to burning, &c« The parties setting rip the will must show its existence at the time of the death, so as to negative its destruction by the testator. Here the will is not found at all, after the most rigorous search. Is not the presumption stronger that it was destroyed than that it existed at the death 1 The law will not presume that it was fraudulently destroyed by the heirs or any bne of them; but the contrary, until the fraud is Shown. (4 Stark. Ev. 1242. 1 Wils. 310.) From the nature of the case, we could not prove the act of cancellation, or destruction; for.it must have been in secret. We aré thrown dpoh the best evidence Which the law sees to be in our power; and are entitled to the benefit of it with the jury. (1 Stark. Ev. 102.) The highest evidence we can have is the absence of the will. The inference of revocation to be derived from *the mere noh-prodüctfoñ Of the will, was" not made a point in Dan v. Brown, nor when this case was before the court the second time; and it is therefore fairly open for discussion now. In the trial of this causé before, at the circuit, the judge who presided there recognized the non-production as evidence of revocation. Full force was allowed to it in Loxley v. Jackson (3 Phillimore’s Eccl. Rep. 128,) and the rule is laid down by Starkie as a part Of the common law. (4 Stark. Ev. 1242, 1715.) The very point decided in Loxley v. Jackson was, that if a will proved to have been executed, and which after execution -remained in the custody of the testator, cannot be found after his death, a presumption arises that he has cancelled the will; and the burthen of proving "the contrary-, is thrown 'on the party alleging it. In Legare et ux. v. Ashe and others, (1 Bay’s S. C. Rep. 464,) the same rule of presumption is recognized as existing in the common law courts. Ohe of the court directed the jury that the last will not appearing at the death, was strong evidence of revocation-. The other two judges agreed that the non-production of it was prima facie a presumption that it was cancelled, but not a legal conclusion; and therefore might be met and done away by circumstances. These were put to the jury, who found in favor of the will. We suppose, then, we have proved that his honor, the judge, erred in charging that the law presumed the existence of the will at the death, unless the contrary was proved; and that there should be a new trial on this ground, if on no other.
    But we also insist that his honor, the judge, at any rate, erred in not permitting the counsel for the defendant to argue to the jury that the evidence would justify them in finding a revocation or destruction by the testator. We are not bound to maintain that they must have so found upon the evidence ; but only that they might have so found or not, it being a question fit for them. We have seen the force attributable to the circumstance that no will was found at the death; its total absence; its non-production; and no account rendered of it. If this alone would not warrant the jury in finding a revocation, then we ask to combine it with the evidence of Mrs. Ayers. This court decided expressly, when the cause came ^before them from the first trial of the ejectment, that Mrs Ayers’ testimony alone formed a fit question for the jury. Such is the language of Sutherland, J. who gave the opinion of the court. His honor, the judge, at the circuit, treated this as an obiter dictum; but we say, with great deference, it was in point. It was necessary to the final disposition of the cause. There were several points upon which it was held the judge at the circuit erred in that case. The court say so, and grant a new trial. The argument which makes the decision of any one of those points obiter, makes them all so ; and nothing was decided by the case, from which the circuit judge might not depart at his pleasure. The object of motions for a new trial is, to settle all the points on which the judge may have passed, in order to instruct him as to his course • otherwise, there must be a new trial of the whole cause for each single point; and litigation will be endless. If the decision was fairly in the course of the duty of the bench, it was not obiter.
    
    
      J. P. Cushman and A. Van Vechten, contra,
    stated these points : 1. The execution of the will and its contents were duly proved ; 2. The lessors (James and Weed Brown) were competent witnesses to the court, to prove due search for the will, and that it could not be found ; 3. The acts of the testator when he applied to make a second codicil, were competent evidence ; 4. The facts proved on the part of the defendant were not sufficient to raise the presumption that the testator had revoked the will and codicil; and his honor did right in not allowing the contrary to be argued to the jury.
    They said most of the points raised on either side had been settled in the course of this very litigation, and need not be farther noticed. Thus, that the execution of the will was sufficiently proved, and its absence accounted for so as to let in parol proof, were decided; and we also supposed that this very case had settled, that where a will of lands is once duly proved, it shall be presumed to continue until the contrary is established. In Dan v. Brown, the second head of argument made by the court presents and settles this very position. The second point made by the plaintiff’s counsel *presented it distinctly to the court. It asks to exclude the testator’s declarations, on the ground that they are not admissible to repel the presumption that the will had been destroyed. The court answer, there was no such presumption to repel; but that it was the other way. This decision was the reason why we did not now call Mrs. Ayers to show the subsequent and continued existence of the will, down nearly to the time of the death.
    The testimony of Lockwood, in respect to the testator’s application to him to draw a second codicil, is said to be mere declaration or hearsay, and no part of the res gesta. The argument is founded on the supposition that the res gesta are the making of the will and its immediate incidents. They are not confined to that, but include every thing done in respect to the will. Acts were done for the purpose of malting a second codicil. For this purpose the testator travelled to Lockwood’s house. The purpose is formed, directions given and abandoned. It is the same thing as asking counsel to write his codicil, the counsel going on with the writing half way, and then abandoning it. The act of the counsel would be the act oí the testator. It would be a res gesta. In either case there is an act done, though it is without any direct effect. We show the testator has done something in relation to the will; and this was important, as showing the continuance of the will to the very day of the last sickness, during which, if there had been any alteration or revocation, we should have heard of it.
    As to the necessity of proving the continued existence of the will, if there was any, it is satisfied up to the last sickness. We had supposed, however, there was none, that this question was res judicata in this very cause ; and certainly the case of Legare et ux. v. Ashe, will not be received to shake such authority. But it does not apply. The strong circumstantial evidence in that case showed the continuance of the will to the last moment; and it was not necessary to call in the aid of presumptive continuance. Loxley v. Jackson gives us the rule of the ecclesiastical court, which has cognizance of testaments respecting personal property alone. Our statute of devises prescribes certain modes of revocation for a *will of lands; and one of these must be shown affirmatively, and cannot be presumed from the mere failure to find the will. The prerogative courts have nothing to do with revises. Parol admissions in respect to revocations are admissible there. (1 Phillimore’s Eccl. Rep. 469. 2 id. 427. 2 Addam’s Eccl. Rep. 223.)
    As to the withholding of the case from the jury, where the testimony is insufficient to maintain a position, the judge may always act without the aid of the jury. The same defect which would authorize him to nonsuit, would sanction the withholding testimony from the jury, introduced by way of defence. It follows, that in the latter case he may prevent counsel from commenting upon the facts to the jury. A judge is bound to nonsuit, where the testimony fails to make out the plaintiffs case. If he refuse to do so, it is error, (Foot v. Sabin, 19 John. 154.) The error would be on the other side, if he should refuse to overrule the defence where the testimony fails to make it out.
    [Sutherland, J. The question here is, whether the case was proper for the jury."]
    [Woodworth, J. Yes. And that depends on the question whether there could be any dispute about the facts ? If there be no dispute about them, then the court is at once and unqualifiedly to pronounce the law arising upon them.]
    Or, in other words, whether any legitimate evidence whatever was given to establish a revocation, which could be left to the jury ? whether there was any evidence of a revocation in presence of Mrs. Ayres? The onus probandi lay with the defendant. The fact of burning papers, unless there is also evidence that the will Was among them, is nothing at all. Mrs. Ayres saw the testator take papers from the desk several times. Yet there can be no pretence that he destroyed his will more than once; much less is there any proof that he destroyed his will animo revocandi. Such testimony does not even begin to make the proof of revocation. Nothing was argued, or could be argued from the mere absence of the will. If it is necessary to add anything to the decision of this court, take the words of De Grey, Ch. J. in Goodright v. *Harwood, (3 Wils. Rep. 513:) “ When a man hath once declared properly what his mind is as to the disposition of his lands, upon doing that, he is presumed to continue of the same mind till his death, unless the contrary appears, The same presumption will stand upon a second will or declaration of his mind properly.” In the case at bar, there are no facts on which a contrary presumption can rest. It being so there was nothing for the jury. (Jackson v 
      Schauber, 7 Cowen, 187.) The trial by jury would be a great inconvenience, if courts were bound to submit questions of fact to them which there is no legal testimony to raise.
    
      
       S. C. on error, 6 Wen. 173, 176.
    
   Curia, per Woodworth, J.

This cause first came before the court on a motion for a new trial; and is reported in 4 Cowen, 483. Several points were then adjudged. It was held that, to warrant the giving of parol evidence of the contents of a will not shown to be destroyed, it must be first proved that diligent search had been made at the place where it was most likely it would be found, and that such search might be proved by a party in .the cause, though he be interested; it being addressed to the court in order to let in secondary proof. It was also held that where the execution of a will is established, in order to revoke it, there must be some outward and visible sign of revocation or cancelling anima revocandi,

A new trial was granted; and at the next trial the judge nonsuited the plaintiff, on the ground that it was necessary to show the existence of the will subsequent to the execution of the codicil. This court held that there was suffi cient evidence to go to the jury; and that it should have been submitted to them. (6 Cowen, 377.) It is here proper to observe, that the court were not called on to decide what was or was not sufficient evidence of revocation. When the judge nonsuited the plaintiff, the cause had not arrived at a point when it was necessary to pass on the defence. He had not, and could not with propriety, have been called on to express an opinion as to the proof of revocation. The nonsuit was for defect of proof on the part of the plaintiff, that it was prima facie insufficient; consequently if there are expressions in the opinion delivered, which go *beyond the question presented to us, they form no part of the point decided, and are liable to be examined and tested by the rules of law.

On the last trial, the counsel for the defendant cited the case in 6 Cowen, to prove that the evidence offered for the purpose of showing a revocation, ought to be submitted to the jury to pass on. They relied on an expression in the opinion, that whether the will was among the papers which Mrs. Ayers testified her father burned in March, 1822, should also have been submitted to the jury. The force and relevancy of that testimony had never been argued or considered by the court; consequently the judge who held the circuit was at liberty to lay down the law differently, if the doctrine contended for was, in his opinion, incorrect. At the circuit, he thought the law otherwise, and so declared it. If he erred, it is not for disregarding an adjudged case; but in deciding incorrectly a point that had not been adjudged in this court. I will now proceed, more particularly to consider the exceptions taken at the trial. '

The plaintiff offered to prove that the day before the testator was taken sick, he called upon Lockwood and requested him to draw a codicil to his will. This evidence was objected to, but admitted. Lockwood testified that the testator applied to him to draw a codicil; but it was not done. The will was not produced.

It is not material, in the decision of this cause, whether Lockwood’s testimony was competent or not; for it will be seen in the view taken, that the will was sufficiently proved independent of this evidence, and did not require its support. The rule is, that if the testator lets the will stand until he dies, it is his will; if he does not suffer it to do so, it is not his will. It is ambulatory until his death. (4 Burr. 2514.)

The exception to the admissibility of Brown as a witness to the court, to prove the loss of the will, and that due search had been made, was properly overruled. The admissibility of this evidence had received the sanction of the court in 4 Cowen, 491. I will not therefore add any thing on this point.

The plaintiff offered parol evidence of the contents of the will, which was objected to on the ground that he had not *sufficiently accounted for the non-production. This was overruled.

In 4 Cowen, 483, the court decided what was necessary to be made out in order to warrant the giving of parol evidence. It is believed that the rule there laid down was fully complied with; there being proof of diligent search for the will in places where it was most likely to be found.

The defendant then offered to prove that one of the daughters had a large family, and the parents were unable to support them; and also the situation in point of property of the other children. This was overruled as altogether irrelevant and afforded no ground of an implied revocation. These considerations were present to the mind of the testator when he made his will. It does not appear that they had arisen since its execution; but be that as it may, by law he had the absolute right to disregard the supposed claims of his children; and might have willed his property to a stranger, had he been so disposed. I am not aware of any case or principle that sanctions the competency of such evidence.

The opinion of the judge, as delivered at the close of the evidence, presents the most important question in this cause. He observed, “that if the will was duly executed, and once an existing will, and in the hands of the testator, unless there be evidence of its having been cancelled or revolted by the testator, the law presumes its continued existence to the time of his death”

That this is a principle of the common law, seems to me well settled by authority.

The mere fact that the will is not produced, raises no presumption that it has been cancelled, provided satisfactory evidence is given that, on diligent search in places where it would be most likely to find it, it could not be found. The court, ha^ heretofore decided, that on such proof, secondary evidence may be given and the will re?” in evidence. To. what purpose allow the copy of the wih to be given in evidence, if, notwithstanding, the non-production of the original raises a presumption that it has been revoked? If such had been the intention of the court, they undoubtedly would have said, when this cause came before them in 4 Cowen, the plaintiff must, in addition to the proof of diligent search, repel *the presumption of revocation. Proof of the first alone, is entirely useless unless accompanied by the other. ■ That nothing of this kind was in the contemplation of the court, as necessary to give effect to the will, I think evident from their silence. This omission must have arisen from the opinion formed, that the latter fact was unnecessary. Let the question be examined on principle. . The plaintiff is required to prove the will of the testator, and. produce it, or show legal grounds for dispensing with the production of the original. If the facts proved are such as the law sanctions, and excusé the production of the will, then the copy or contents of the will proved, necessarily stand in the place of the original, and have the same legal effect. This principle is familiar in the case of all written instruments. If the original is lost or. canpot be found, you may resort to secondary evidence; and if that is sufficient, it supplies the place of the paper lost, fir which cannot be found. In these cases was it ever urged as an objection, that, after full proof of the contents, undisputed and unquestioned, a party was not entitled to all the benefits that would have arisen had the original been produced! I am not aware that any such objection has ever been sustained or even raised. It will be seen that the question of law in all these cases is what evidence will enable a party to resort to secondary evidence, when the original cannot be produced! The principle is general; and whether applied to a will or a deed, has equal effect. It places a party on the saíne ground as if secondary evidence had not been needed. It substitutes the copy or proof of contents for the instrument lost, or not found. From the nature of the principle, then, it follows, that a party cannot legally be called on to prove more than would be required if the original had been produced; and, in that case, I apprfehend no question of presumed revocation would be made, unless founded on other facts. That such was the opinion of the king’s bench, is manifest from the case of Harwood v. Goodwright, (Cowper, 88.) In that case a special verdict was found, that in 1748, the testator made a will, setting it out, that in 1756, the testator made another will, duly attested *that the disposition was different from the will of 1748; but in what particulars was unknown to the jurors. They further say, that they do not find that the testator cancelled or destroyed the will of 1756; but what has become of the will they are altogether ignorant.

The court decided, that although the latter will contained a different disposition from the former, yet, as the particulars of that difference were unknown, it was no revocation of the former will.

Here, then, was a case where secondary evidence was resorted to, and so much of the contents proved as to show there was a different disposition. No objection was raised by the counsel, or intimated by the court, that any presumption arose against the validity of the will by reason of its non-production. On the contrary it is manifest, the only difficulty was, that the jury were unable to find wherein the different disposition consisted. Had this been done, the court would have decided that the latter will revoked the former. This case was first decided in the common pleas, and is reported in 3 Wilson, 497. That court held, that the latter will revoked the first; no suggestion was made, that the non-production varied the plaintiff’s rights. The only point was whether the contents were sufficiently found. Nares, justice, says, “ the second will is not found to be cancelled or destroyed; therefore it must be considered as in being.” De Grey, Ch. J., observes, “ when a man hath once declared properly what his mind is, as to the disposition of his lands, upon doing that, he is presumed to continue of the same mind till his death, unless the contrary appears.” The same doctrine is advanced by Sir John Nicholl, in Johnston v. Johnston, (1 Phillimore’s Rep. 466.) He observes, “the general rule certainly is, that a will once executed, remains in force, unless revoked by some act done by the testator, animo revocandi, such as burning, cancelling, making a new will and the like.”

It is not perceived that there was any error in the opinion expressed by the judge at the trial on this part of the' case. The residue of that opinion is in these words : “ that the facts proved by the defendant were not sufficient, in judgment of law, to warrant the inference that the will had been cancelled *or destroyed by the testator, or to justify the jury in finding that the testator revoked his will; and that the counsel for the defendant could not be permitted to argue to the jury that those acts alone would justify them to find that the will had been revoked.”

If the judge was correct in laying down the law on the facts proved by the defendant, I presume it will be admitted, that the latter part of the opinion followed as a necessary consequence. Where facts are not disputed, the law arising on those facts is to be declared by the court. A different doctrine would at once invade the jurisdiction oí the latter, and in effect transfer the decision of the law as well as the fact to the jury. Where the law and fact are so blended that they cannot be separated, the jury of necessity pass on both, under the advice of the court. If they err, the error will be corrected. But where the facts are conceded or fully established by proof, without contradiction, the law invariably adjudges as to the effect and operation of the facts. In such cases, it is the bounden duty of the court to state the law arising on the facts to the jury, whose duty it is to receive it as law from, the court. In the present instance the judge stated the law merely, and the duty of the jury. If he erred, this court will correct,the error ; but can never sanction the claim of counsel to appeal from the decision of the court to the jury. That such would have been the effect in this case, is manifest. The defendant had proved certain facts, on which he relied to satisfy the jury the will had been revoked. The plaintiff admits the truth of the facts ; the court decide that such facts are altogether insufficient; and are so considered in judgment of law. If the counsel argues to the jury, they are necessarily driven to contend that the facts are sufficient to warrant the jury in finding that the will was cancelled. It seems to me that no court would rightly discharge their duty in permitting such a course.

It only remains to consider, whether the facts were not wholly immaterial and irrelevant. They are the following: Lockwood drew a codicil, which did not vary the rights of the plaintiff in this action. He was employed to draw another, but did not; and no other appears to have been drawn.

*Nancy Ayres says the testator took with him a trunk when he left home the last time, and took papers with him in the trunk. She saw a bundle of papers, but did not move or examine them; thinks the bundle was two or three inches thick. A short time before he left home, he was very attentive to the arrangement of his papers at his desk. Once or twice she saw him burn papers taken from the desk. Some time before he went away, he took some papers, or something that looked like papers, to Troy. •

Mrs. Ayres, again examined, says, that a short time before her father went from home in 1822, he took something from the desk which appeared like papers. He appeared to be shy about it, and was going to Troy. On her cross-examination she was not certain it was papers her father had in his silk handkerchief; she did not see him take it from the desk; but he had been to the desk, and had something wrapped in it.

Having shown that this will was duly executed, it remained in force unless revoked. The statute has prescribed, (1 R. L. 365,) that no last will shall be revocable otherwise than by some other will or codicil, or by burning, cancelling, tearing or obliterating such last will by the testator himself, or in his presence and by his direction and consent. As to burning—once or twice he burnt papers taken from the desk. In the first place, everything else apart, the presumption would be that a will executed deliberately and recognized five years afterwards, when a codicil was added, was not among the papers burnt, and particularly when no act or declaration of the testator manifested the least dissatisfaction. There is no proof or presumption, that the will was among the papers. The essential fact is wanting. Where was the will 1 The witness is ignorant; but this fact must be supplied; and it can only be supplied by conjecture. Would any court be justified in instructing a jury, that on such facts they might presume the will was among the papers burnt 1 It appears to me that such a charge would be well calculated to break down the landmarks of the law; to divest estates upon mere suspicion, and virtually operate as a repeal of the third section of the statute of wills.

*The residue of the proof is, if possible, less to the point. The testator took some papers with him in a trunk. At another time he had something in a handkerchief that appeared like papers. He had been at his desk, but the witness did not see him take it from the desk. He appeared shy, and was going to Troy. o From this evidence also, the defendant "wished to draw the inference of cancelling; and that, too, without evidence of the destruction of any paper. The judge was gravely called on to permit th counsel to contend before the jury, tha.t enough had beei shown to find that the will had been revoked. If it ha been proved even that the will was taken from the desi by the testator, it would be no evidence of its ~subsequen destruction. But to proceed a step farther, and contern that an unknown paper was taken, that the will was thai paper, and must have been cancelled, appears to my mind gratuitous assumption, not warranted by the testimony.

Believing as I do, upon full consideration, that the evidence of revocation entirely failed, I am of opinion that the motion for a new trial be denied,

New trial denied. 
      
       As to the amount of proof necessary to establish the loss of original papers, and admit secondary evidence as to their contents, &c., see 2 Cowen & Hill’s notes to Phil. Ev. 441, et seq. where a synopsis of all the leading authorities on this subject may be found.
     
      
       A lunatic is incompetent to revoke a will. Smith v. Wait, 4 Barb. S. C. Rep. 28.
     
      
       This is not so ; but a revocation is always presumed where a will is traced to the possession of the testator, and cannot be found at his death. S. C. on error, 6 Wen. 173, 182, et seq. See also Legare & Wife v. Ash, 1 Bay. 464. Jones v. Murphy, 8 Watts & S. 275. Lawson v. Morrison, 2 Dall. 286. Lillie v. Lillie, 3 Hagg. 148. Wargent v. Holling, 4 Hagg. 245. Freeman v. Gibbons, 2 Hagg. 328. Colvin v. Frazer, 2 Hagg. 266. So where a duplicate will was left with the testator and could not be found after his decease. Richard v. Mumford, 2 Phil. 23. See further, Moor v. Metcalf, & De La Torre v. Moor, 1 Phil. 375. And as the law does not under, such circumstcmceg, presume that the will was fraudulently destroyed, the burthen of proof rests on the party claiming under it, Loxley v. Jackson, 3 Phil. 128. Per chancellor in Betts v. Jackson, 6 Wen. 185. Wilson v. Wilson, 3 Phil. 552. Durant v. Ashmore, 2 Richardson’s South Carolina R. 184.
      But by the R. S. 4th ed. 254, 5 8, no will can be proved as a lost or des. troyed will, unless it shall have been proved to have been in existence at the testator’s death, or shown to have been fraudulently destroyed in his lifetime; nor unless its provisions be clearly proved, by at least two witnesses, a eoii sect copy being deemed equivalent to one witness.
     
      
       These opinions of Ch. J. De Grey, and Justice Nares in the common pleas, were overruled on error in the king’s bench. 8 Cowper, 88. See also per Tallmadge in Betts v. Jackson, 6 Wen. 200. And the judgment of the king’s bench was affirmed on appeal in the house of lords. See 7 Brown’s Parl. Cas. 44. Nor does the case of Johnston v. Johnston, 1 Phillimore, 446, sustain the position for which it is cited in the text as it is analogous. There the will was present in court, and the question was, whether it had been revoked by the birth of children combined with other circumstances.
     
      
       The decision of Judge Woodward was reversed on error. See S. C. 6 Wen. 173.
     