
    Harris v. Harris et al.
    
    The provision of the Revised Statutes in relation to the probate of a lost will in the Court of Chancery (2 R. S., p. 68, § 67), requiring two witnesses to establish it, relates only to that special proceeding, and does not abolish the common-law rule of evidence which allowed the proof of a lost will, in the same manner as that of a deed, by a single credible witness.
    Accordingly, where, in an action of partition, the plaintiffs established their title by sufficient common-law evidence of the existence and fraudulent destruction of a will, held, that they were not concluded by the dismissal of a suit in which they had sought to obtain the probate and record of the will under the statute.
    Appeal from the Supreme Court. Action for the partition of lands, tried before Mr. Justice Potter, without a jury, at the Saratoga Special Term, in July, 1860. The plaintiff and defendants were the heirs-at-law of John Harris, who died in February, 1859, being seised of the real estate described in the complaint, and sought to be partitioned. The defendants Ephraim and William Harris, severally answered and denied the tenancy in common between the parties, as alleged, and averred that their father, by a last will and. testament, which was never revoked or annulled in any manner, devised said lands, in several and distinct portions, to them; and that they were severally the owners thereof, in fee simple. The plaintiff, in reply to the answers (after a general denial of the new matter stated therein), set up that a former action had been brought by said defendants and one Charles Harris, against the plaintiff and others, in the Supreme Court, for the purpose of having the last will of John Harris proved as a lost and destroyed will; and that said action was duly tried and judgment finally entered therein dismissing the complaint; and claiming that said judgment was conclusive on the defendants’in this action, and that they had no interest in the property by virtue of such will.
    • The pleadings admitted that the parties were the heirs-at-law of John Harris, deceased, and on the trial it was admitted that he died seised of the property described in the complaint; that the same could be partitioned, and that the value of the lands was at least $6,000.
    The defendants Ephraim and William Harris then gave evidence tending strongly to show that in July,' 1856, John Harris made and executed a last will and testament, with all the formalities required by the statute; that he was, at the time, of sound .mind and under no restraint; that the instrument was lost or fraudulently destroyed in the testator’s lifetime, and that it was not destroyed by the testator, animo revocandi. The provisions or contents of this will were proved distinctly and clearly by one witness, who drew it, at the request of the testator, and who was one of the. subscribing witnesses to it. According to his testimony, the will contained a devise of all the testator’s lands described in the complaint, to the defendants, Ephraim and William Harris, and there was no devise of any portion of his real estate to the plaintiff, or to the tesr tator’s daughter, Phebe. The memorandum made- by the witness, preparatory to drawing the instrument, was also produced in evidence, or at least that part of it which had been preserved; and there was other evidence corroborative of the testimony of this witness, as to the contents of the will. There was no other witness, however, testifying distinctly ’ to the “ provisions ” of the will, nor was any copy or draft of it shown.
    After the defendants rested, the plaintiff introduced in evidence the judgment roll in the suit of Ephraim Harris, William Harris and Charles Harris v. Aaron Harris and others, to establish the will of John Harris, as a lost or destroyed will.
    The judge at special term found these facts:
    1. John Harris, deceased,' in July, 1856, made a last will and testament, in due form of law; it was duly and properly executed, and at.the time of making it he was, in all respects, competent to devise real estate, and riot under restraint.
    2. By the terms of the will, John Harris devised to his sons Ephraim and William severally, parcels of land, which together constitute the lands described in the complaint in this action, and which is sought to be partitioned, and was all the real estate of which John Harris died seised.
    8. The said will of the said John Harris was lost or destroyed in the lifetime of the said John Harris; it was not lost or destroyed by him or by his direction, nor with any intent on his part to cancel, revoke dr destroy the same; and said will was not cancelled, revoked or destroyed by John Harris, but was lost or fraudulently destroyed by some other person or persons against his will and consent.
    4. In March, 1859, Ephraim Harris, William Harris and Charles Harris commenced an action in the Supreme Court against Aaron Harris and William Burnham and Phebe,- his wife, alleging in their complaint the making and existence of the aforesaid will by John Harris, and setting forth the terms of said will, alleging its loss, and charging the loss and destruction to the said Aaron Harris, and therein praying the judgment of this Court that the said will be admitted to probate as a lost will. Issue was joined by the defendants thereon, and the action and issues were referred to be heard and determined by a sole referee, who, after hearing the testimony, .found and reported thereon as facts: That John Harris, de* ceased, in the complaint named, made and published his last will and testament in due form of law, to pass real and personal estate; that said will was in existence at the time of the death of the said John Harris, and was fraudulently destroyed after his death, by the defendant, Aaron Harris; that the provisions of said will were not proved by two witnesses, and that no correct draft or copy thereof was proved. And the said referee found, as conclusions of law, from the foregoing facts that the will could not be allowed to be proved as a lost or destroyed will, under article third, chapter sixth of part second of the Revised Statutes; and that the complaint of the plaintiff should be dismissed without costs to either party ; that said report became and is the judgment of the Supreme Court, entered in the clerk’s office, 2d February, 1860, and before the commencement of the present action.
    The judge’s conclusions of law upon these facts were:
    1. That the last will and testament of the said John Harris, • made in July, 1856, was a will and testament of both real and personal estate, made in due form of law, sufficient to pass real and personal estate; that said will was.duly executed by the testator; with all the forms and requirements of the statute; and that the said will was in full force and effect, unrevoked by the said testator at the time of his death.
    2. That by the terms of the said will, Aaron Harris, the plaintiff, had no interest in the real estate of the said testator, that gave him a right to institute an action for partition thereof.
    3. That the judgment in the action, in the Supreme Court, instituted by Ephraim Harris, William Harris and Charles Harris against Aaron Harris, William Burnham and Phebe Burnham, his wife, was not conclusive as to the validity of said will, and was ineffectual against the devisees of the real estate of John Harris, in establishing their title to the said real estate, in this action.
    4. That the plaintiff’s complaint in this action be dismissed, and that the defendants have their costs.
    
      Judgment at special term being entered, dismissing the plaintiff’s complaint, he appealed therefrom, and the judgment was reversed at general term, and a new trial ordered.
    The defendants, Ephraim and William Harris, appealed from the order granting a new trial, and assented that if such order should be affirmed, judgment absolute might be rendered against them.
    
      A. Pond, for the appellant.
    
      L. B. Peter, for the respondents.
   Wright, J.

It is not doubted that irrespective of any statute provision, either in an action at law or on an issue in an action of partition, the evidence upon which the above facts were found was sufficient to prove as well the existence as the destruction and contents of the alleged will. Before the Revised Statutes, at least, in such an action, or on such an issue, only such an amount and degree of evidence was required, as to the contents of the will, as was necessary to establish any other fact in an action; that is to say, proof of the facts in issue, by a single witness. (Jackson v. La Grange, 19 John., 386; Dan v. Brown, 4 Cow., 483; Jackson v. Betts, 6 Cow., 377.) Nor can it be claimed that the probate of a will, not lost or destroyed, in a Surrogate’s Court, or one lost or destroyed in the Supreme Court, under the provisions of the Revised Statutes, is, in either case, conclusive as to real estate. It is conclusive as to personal, but prima fade only as to real estate, and a failure to have a will probated, either in the Surrogate’s Court or Supreme Court does not prevent those claiming under it from setting up and establishing their title by common law evidence, in an action in any court, either of law or equity, where the title to the real estate thereby devised may be involved, or come in question, unless some statutory provision has altered the common law rules of evidence, in respect to the proof of a will lost or destroyed by accident or design, and made it incumbent, in all cases, to prove the contents of such will by at least two credible witnesses, or by one witness and a correct copy or draft of the lost instrument. About the only question in the present case is whether such a statutory rule exists.

The Revised Statutes empowered the surrogate to take proof of wills of real and personal estate presented to him for. probate, and make a record of the same. The mode of doing this was definitely pointed out. But no jurisdiction was conferred on the surrogate to take proof of the execution and validity of a lost or destroyed will. This power was given to the Court of Chancery, now the-Supreme Court. It was provided that “ whenever any will of real or personal estate shall be lost or destroyed by accident or design, the Court of Chancery shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds. (2 R. S., 3d ed., p. 132, § 85.) .Upon such will being established by the decree of a competent court, such decree shall be recorded by the surrogate before whom the will might have been proved, if not lost or destroyed; and letters testamentary or of administration, with the will annexed, shall be issued thereon by him in the same manner-as upon wills duly proved before him. (§ 86.) If, before or during the pendency of an application to prove a lost or destroyed. will, letters of administration be granted on the estate of the testator, or letters testamentary of any previous will of the testator be granted, the' court to which such application shall be made shall have authority to restrain' the administrators or executors so appointed from any acts or proceedings, which it may judge would be injurious to the legatees or devisees claiming under such lost or destroyed will. (§ 87). Then follows this provision: “Ho 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 time of 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.” (§ 89.)

The general term of the Supreme Court construed this latter provision as establishing a rule of evidence as to the proof of a lost or destroyed will, for all courts, whatever might be the purpose of proving such' will, and that in respect to such a will its contents must be proved in all cases, and in all tribunals, to give it any validity or effect, by at least two credible witnesses, or by one witness and a correct copy or draft of the lost instrument. On the contrary, it is claimed, that construing this section with the four sections preceding it, the intent of the legislature was to provide a rule of evidence that should be applicable only to the proceeding authorized in Chancery to prove and establish a lost will, and attain the same general results, as to obtaining and preserving record evidence, and the issuing of letters testamentary or of administration by the surrogate, as are obtained by the ordinary probate of a will not lost. If the construction of the general, term'given to the statute be correct, then the provisions of the will of the father of the defendants was not proved as required by it. It would be otherwise if the rule requiring two witnesses to prove the contents of a lost will was limited to the special statutory proceeding for its probate in the Court of Chancery. The rules of evidence in relation to proving the execution and contents of lost instruments, upon trials at law or in equity, would remain unaffected •; and parties acquiring rights under a lost or destroyed will, might establish those rights by the same kind. of evidence as was allowed prior to the enactment providing for the probate of such will.

We are of the opinion that the provisions of section 89, above quoted, were intended to apply only in the direct proceeding under the statute, for the purposes of probate and record of a will alleged to have been lost or destroyed ; and were not designed as a general rule of evidence "in all cases, and in all tribunals, when the execution and validity of a will lost or destroyed by accident or design, should come in question. The statute by the construction given to it by the general term, would alter the rules of evidence of the common law as to the proof of lost wills, and establish what would seem to be an unreasonable discrimination against wills' accidentally lost, or fraudulently destroyed, without fault on the part of the parties interested therein. The legislative intention to effect so radical a change in the common-law rules of evidence is not manifest; and there is nothing in the nature or. character of the instrument to require the contents of a lost will in all cases to be proved by two witnesses, when the contents of a lost deed may be satisfactorily proved by a single witness.

The defendants, as devisees of the real estate of John Harris, deceased, were not concluded by the judgment in the proceedings instituted under the statute to prove and establish their father’s will as ope fraudulently destroyed; nor was such judgment effectual against them as such devisees, in establishing their title to the real estate in the action of partition. It cannot be pretended that the probate and record of a will of real estate by the Supreme Court under the statute, has any other or different effect than the probate before the surrogate of a will not lost; and in the latter case the probate is not conclusive upon any party as to any interest in real estate. Had the defendants, who were plaintiffs in the action or proceeding to prove and establish the will as one lost or destroyed by accident or design, been successful, the judgment thereon would not be conclusive upon or estop the plaintiff in this action, the object of which is to divide the real estate of which John Harris died seised, among those entitled thereto. And if Aaron Harris, the heir-at-law and plaintiff in this action, and who was the defendant in the former one would not have been estopped by the judgment thereon had it been in favor of 'the defendants, the latter cannot be estopped although they failed in that action; as estoppels when they exist at all must be mutual and bind both parties or neither. Besides, the object sought to be attained ’in the two suits are entirely distinct and different. The single purpose of the former one was to make proof of a will alleged to have been lost or destroyed. And the judgment in legal effect was, that there was not sufficient proof to establish the will as a record according to the provisions of the statute in relation to the probate of wills. To this extent it was conclusive. But the action did not directly involve the validity of the will, as a will or devise of real estate, and no such judgment was authorized. Ho such judgment in terms reaching that question, was given. On the contrary the record distinctly shows that the exclusive ground on which the judgment refusing probate proceeded was, that there was a failure of statute evidence as to the contents of the will, which the court found had been made and published in due form of law to pass real and personal estate, and was fraudulently destroyed' by the plaintiff in this action.

I am of the opinion that the defendants were not concluded by the judgment dismissing the complaint in the proceeding to prove and establish the will, and that the facts of the case justified the legal conclusion at the special term, that the plaintiff had no interest in the real estate of the testator that gave him the right to institute an action for the partition thereof.

The order of the Supreme Court should be reversed, and the judgment of the special term affirmed.

Denio, Ch. J., Davies, Selden and Balcom, Js., concurring,

Judgment affirmed.  