
    
      THOMAS ET AL. vs. THOMAS
    
    Eastern District.
    
      January 1831.
    APPEAR PROM THE COURT OF THE THIRD DISTRICT, THE JUDGE OF THE FOURTH PRESIDING.
    It is not sufficient ground to reject a witness that another has or may contradict him.
    The existence, loss, and contents of a will may be provedby parol testimony.
    This suit was brought to recover from the defendant, a slave, to which the latter set up title, under the will of his brother Joseph Thomas.
    On the trial of the cause, the defendant offered witnesses to prove, that they had seen and witnessed an instrument of writing, purporting to be the last will and testament of Joseph Thomas, deceased, and that they were sworn by the judge of probates, to prove the signature of the deceased, when the will was offered for probate. The defendant’s counsel stated, that this evidence was offered for the purpose of establishing the fact, that such a will was once in existence, and that their object was subsequently to prove the loss of the will, so as to enable them to give parol evidence of its contents. To the introduction of this testimony, the plaintiffs counsel objected, on the ground that the defendant must first prove the loss of the will.
    The court refused to allow, the evidence, on the ground that a will being an instrument of writing, clothed with certain formalities prescribed by law, must appear to have been complied with, which could only be done by inspection of the will itself.
    There was judgment for the plaintiffs, and the defendant appealed.
    
      Lawrence and' Ogden for appellees. !
    
      Gurley and Morgan for appellant.
   Porter J.

delivered the opinion of the court.

The petitioners claim from the defendant a slave. In his answer, he sets up title to the property under the last will and testament of one Joseph Thomas, deceased, and avers that the will was presented and proven, after his decease, before the judge of probates, in and for the parish of East Baton Rouge, and ordered to be executed: that, since the inception of tills suit, he has applied to the Probate Court for the will, but has been unable to procure it: that if the original can be found, or a certified copy, it will be offered in evidence; and in case it should not, the next best evidence in the defendant’s possession will be given.

On the trial of the cause, the defendant, in support of the allegations contained in his answer, offered, first, a petition to the judge of probates, in which it was stated, that by the will of Joseph Thomas, a negro had been bequeathed to the petitioner, but that the testamentary disposition had been reduced to one third of the property left, by virtue of an order of the court. The petition concludes with a prayer, that the property should be sold. On this application, which appears to have been filed on the 16th of April, 1825, the judge made the following order: “Let a public sale of the property, real and personal, belonging to the succession of Joseph Thomas, take place on the 16th of May, on the following terms,” &c.

He also offered a petition to the Court of Probates, dated the 25th March of the year 1825, setting forth, that a will had been left by Joseph Thomas, and praying that it might be admitted to probate, and its execution ordered. On this petition, the following order was given: “ Let ten days’ notice be given of the prayer of this petition.”

The defendant then offered witnesses to prove, that they had subscribed the will: that they had been sworn before the judge of probates to prove it. He then offered to prove the loss of it, and after such facts being proven, he would offer evidence of its contents.” To this testimony, the plaintiff objected on several grounds — the most important of which appeal' to be : 1st, That parol testimony of the execution of the will could not be given in that court: that a will being an instrument clothed with certain formalities . . prescribed by law, in, order to give it effect, no evidence of ¡ts iosg or j^g contents, could be offered, until its existence, with the requisite formalities, had been proved : 2dly. That the judge of probates had been examined and had deposed, “that he had never seen such a will, and that no such will had ■been ever recorded in his office.”

tt is not suffid-ject |rwitaess°that another has contra dieted him.

The existence, loss, and contents proved by parol testimony.

The last objection may be dismissed at once. It is of the first impression, certainly, to object to the competency of one witness, because another has or will contradict him. That .. . • may go to his credit, but furnishes no ground to refuse hearing him. The first objection is entitled to more consideration; but we still believe it unsound. The law of evidence, would have a poor claim to the praise justly bestowed on it, if it did not foresee and provide for such a case as this. That rule which is the most universal, namely, that the best evidence the nature of the case will admit, shall be produced, decides this objection;, for it is only another form of expression for the idea, that when you lose the higher proof you may offer the next best in your power. The case admits of no better evidence than that which you possess, if the superior proof hasbeenlost loithout your fault. The rule does not mean that men’s rights are to besacrificed and theirproperty lost, because they cannot guard against events beyond their control. It only means, that so long as the higher or superior evidence is within your possession, or maybe reached by'you,¡you shall give no inferior proof in relation to it. Particular rules which require written proof, always relax themselves to. meet absolute necessity, or that necessity which is occasioned by occurrences common; among- men.' '

There is nothing in a will being required to be in. a parti-cu]ar form which' makes it an exception ,to this great law of necessity. It may increase the difficulty of the proof, but furnishesno reason to refuse hearing it. The court in this case, had proof before them which much diminished the danger of parol evidence. Extracts from the records of the Court of Probates, shewed that the judge had ordered the will to be executed, because he had ordered that property bequeathed' by it, should be sold.

It is, therefore, ordered, adjudged and.decreed, that the judgment of the District’ Court be aunulled, avoided, and reversed; and it is further ordered, adjudged and decreed, that the cause be remanded to the District Court, with directions , to the judge not to reject parol proof of the execution of the will of Joseph Thomas, and of its loss. And it is further ordered, that the appellees pay the costs of this appeal..  