
    Martha Keery, App’lt, v. John F Dimon et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 18, 1895.)
    
    1. Wills—Lost—Action to establish.
    To entitle a plaintiff to succeed in an action to establish a lost will, he must prove that the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and, second, this fact must be clearly and distinctly proved by at least two credible witnesses.
    
      2. Same—Witnesses.
    In such case, to accept the testimony of one to whom the property would go by the will, as that of a credible witness to the contents of the will, would be to overthrow one of the safe guards that the law has established for the prevention of claims of this kind; based upon the testimony of those interested in enforcing the claim.
    3. Same.
    The testimony, in this case, was held to fall short of what is necessary to establish-a lost will.
    4. Witness—Section 829 of the code.
    In such case, the testimony of the plaintiff as to the exhibition to her of the will by the deceased, and her reading it in his presence, if not in viola-of the letter, is in violation of the spirit of the provisions of section 829 of the Code.
    Appeal from a judgment dismissing the complaint on the merits.
    Theodore H. Friend (Wheeler H. Peckham, of counsel), for app’lt ; William R Wilder, for resp’t Charles L. Dimon, individually and as administrator ; Abner C. Thomas, for resp’t Jacob S. Dimon ; Anderson, Howland & Murray (Henry H. Anderson, of counsel), for resp’ts Charlotte H. Dyer and John F. Dimon ; Miller & Miller (J. F. Miller, of counsel), for resp’t Mary H. Bell ; James B. Ludlow, for resp’t Frederic D. Philips.
   PER CURIAM.

—Judgment affirmed, with costs, on opinion of special term.

The opinion of Mr. ‘Justice Ingraham, at special term, is as follows:

The plaintiff in this action seeks to divert all of the property of the deceased from his relatives, and appropriate it to her own . use, by establishing a will which is not produced, and which is alleged to have been executed within a few days of the 30th of September, 1884; - and the last time there is any satisfactory evidence that this will was in existence was about May 20, 1885, when Mr. Morgan swears he took it out of his drawer, and put it in a safe that he h'ad purchased about that time. It is true that Mr. Morgan says he subsequently saw the envelope it which he alleges that he placed this will in his safe, and says he thinks he saw it there as late as 1892; but he is not positive about it, and, as he had then no particular object in looking for the will, I do think that such recollection is satisfactory evidence of its existence at that time. After the death of the alleged testator, the will disappeared, and all attempts to trace it have proved fruitless. There were two subscribing witnesses to the will. One was Mr. Morgan, who drew it; and the other Roy W. ^ Smyth, who was then a clerk in the employ of Mr Morgan. ' Smyth was not produced as a witness, as has since disappeared, and his whereabouts could not be ascertained. The only other person that ever saw this will was the plaintiff, who testified that on the 12th day of July, 1884, the alleged testator being present, she read the will. And it-is upon the testimony of Mr. Morgan and the plaintiff that it is sought to prove the contents of this paper. To entitle the plaintiff to succeed in this action, plaintiff must prove that the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and second, its provisions must be clearly and distinctly proved by at least two credible witnesses. I think the plaintiff has failed in establishing either of these propositions. I have no doubt of the correctness, in the main of Mr. Morgan’s story, — that he drew a will, substantially the same as testified to by him, in 1884; that he delivered it to the testator; that it was subsequently returned to him for safe-keeping; and that he did keep it in his possession for some time. All this, however, comes far short of proving that the will was either in existence at the time of the death of the testator, in 1893, or that it had been fraudulently destroyed during the lifetime of the testator. During this period Mr. Morgan has held several important public offices. He had a partner who appears to have been intimate with the alleged testator, and the testator was many times in his office. It is much moré probable that, during one of the many visits of the alleged testator, he obtained possession of the will, either from Mr. Morgan, and that, circumstance escaped Mr. Morgan’s recollection, or from Mr. Morgan’s partner in his absence. At any rate, the testimony is not clear that this instrument remained in Mr. Morgan’s possession, and its disappearance is certainly most remarkable, if it was not given to the alleged testator. Mr. Morgan’s testimony as to the declarations of the testator would tend to show that he thought the will was in Mr. Morgan’s possession; but he seems to have, been a peculiar individual, and 1 do not tl-nnk that statements of that kind should be considered as establishing by clear proof the existence of the will on the death of the testator, or its fraudulent destruction prior to that time; and his declarations are very seriously weakened by the production of the obliterated will.

It seems that on or about the 23d day of October, 1891, the testator went into the safe-deposit company, in which he hired a vault, and there wrote out a will, which was, in substance, a copy of the one that Mr. Morgan drew for him, in that he left all his property to the plaintiff; and appointed her executrix. Just why the testator should have prepared this will himself, if he supposed that a will substantially the same purport was in Mr. Morgan’s possession, ready to be produced at his death, is not clear. The-fact of his executing such instrument, under the circumstances, would" tend strongly to show that the prior will drawn by Mr. Morgan, and which was executed in 1884, was then in his posses-, sion, or had béen, some time prior to that, destroyed; and the subsequent obliteration of the signatures upon that will would tend to show that, at the time the obliterations were made, he had changed his mind as to the disposition he should make of his property. The testator could have,had no possible motive in destroying this will, if he had supposed the prior will was in existence, and ready to be proven in case of his' death. The execution in October, 1891, and the subsequent obliteration of this last will, seems to me most conclusive evidence that the testator did not then understand that a prior will was in existence, giving the property to the plaintiff.

But the statute also requires that the provisions of a will should be clearly and distinctly proved by at least two credible witnesses. I have no doubt as to the credibility of Mr. Morgan, but the plaintiff in the action stands in an entirely different position. It is somewhat doubtful whether her testimony is not open to the objection that it is in violation of the prohibition contained in section 829 of the Code. The exhibition to her of the will by the deceased, and her reading it in his presence, might well be part of a personal transaction between them ; and if not in violation of the letter, it certainly is in violation of the spirit, of this provision of the Code, which seeks to prevent a person claiming a part of the estate of a dead man from establishing the facts necessary to sustain his claim by his own testimony.. The plaintiff is the sole person interested in the establishment of this wil-1^ by it she will receive a large sum of money; and it would be extremely unsafe to allow a person standing in that position to testify to facts necessaay to entitle her to a judgment against the estate, when the lips of the testator are closed by death, and hence unahle to contradict or qualify the statements that she has made. The statute requires that the contents of the will shall be proved by two credible witnesses; and to accept the testimony of one to whom the property would go by the will, as that of a credible witness to the contents of the will, would overthrow one of the safeguards that the law has established for the prevention of claims of this kind, based upon the testimony of those interested in enforcing the claim. I have examined the cases-cited by the counsel for the plaintiff, but none of them is applicable to the qhestion presented here, except the case of Schultz v. Schultz, 35 N. Y. 653. That case goes a long way towards establishing the sufficiency of the proof as to the existence of this will at the time of the testator’s death. In that case, however, the will was executed less than two years prior to the time of the testator’s death. It was thus comparatively a short time before the testator’s death that the will was in possession of the custodian, and the court states that there is not a scintilla of evidence or circumstances to show that the testator ever had possession of the will after its execution and delivery to the custodian. In this case, however, the long time that elapsed between the time of the delivery of the will to Mr. Morgan and the death of the testator, the absence of any satisfactory proof of the existence of the will from the time it was delivered to Mr. Morgan to the time of tlm testator’s death, and the fact that the testator, made another will, making substantially the- same disposition of the property, which he subsequently destroyed, all tend to casta doubt upon the fact that the will was in existence at the time of the testator’s death, and there is positively no evidence that it was ever fraudulently destroyed.. I do not think the court is justified in diverting a large sum of money from those legally entitled to it, by allowing a lost will tó be proved, except upon the clearest and most satisfactory evidence of the existence of the will at the time of the testator’s death. And the testimony in this case falls short of what I consider necessary to establish such a will. There should therefore be judgment for the defendants, with costs.  