
    Jackson, ex dem. J. S. & W. Brown, against Betts. 
    
    UTICA,
    Aug. 1826.
    Ejectment for lands in the town of Brunswick, Rens-selaer county, on a joint and several demise, from all and each of the three lessors ; tried at the Rensselaer circuit, July 9th, 1824, before Betts, C. Judge.
    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 May, 1822.
    received from Benajah Brown, bis will, to keep for him, &c. The plaintiff then called James Mallory, who swore that on the 9th day of November, 1816 he
    fí16 testat0(? afterwards ejectment, the plaintiff which could not be proved that ^®de several years je8th. an(i ⅛⅛ ,⅛ with M. for sale keeping took it back, for the avow-adding a codicil ; which he did about the Tib of July, 1821. On the 1st day ot March, 1822, his daughter saw a paper in his desk drawer, which she had no doubt was bis will. Between that day, and his going a journey to visit his son, which was in the dpril, next following, she saw him take some papers from the desk, and burn them ; but did not know and could not. say they resembled the will. She saw him also several times engaged at the desk in arranging his papers, a bundle of which he pieced in his trunk. She perused the paper but partially and hastily, «fee. She was, however, satisfied that it was her father’s will, and stated several circumstances calculated to identify it with the will and codicil proved to have been executed ; and she stated other circumstances which had a contrary tendency. The testator died in May, 1822. 'The judge, at the trial, deeming it necessary to shew the existence of the will subsequent to the execution of the codicil; and that this Y/as not satisfactorily done by the daughter’s testimony, nonsuited the plaintiff.
    
      Held% (without deciding whether the judge was correct in holding it necessary to shew the existence of the will at any time after adding the codicil,) that there was sufficient ev-y idence upon this point to go to the jury *, and that it should have been submitted to them, as well upon this question, as that of revocation ; that the plaintiff, therefore, should not have been nonsuited.
    The declarations of a testator, as to the existence of his will, and the place where it may be found, are inadmissible in evidence, though made in articulo mortis.
    
    A party in a cause, (e. g. a lessor in ejectment,) is admissible as a witness, to shew the loss of a will under which he claims, in order to let in secondary evidence of its contents.
    If a subscribing witness to a will, shew it duly executed, though he has forgotten who one of the witnesses was, this is sufficient proof of the execution.
    Diligent search for a will at the last place of abode of a testator, in a desk where he usually kept his papers, and failure to find his will there, held, a sufficient ground for letting irj parol proof of its contents, though he died abroad.
    
      The plaintiff having given notice to the defendant, to Pr°duce the will and codicil of Benajah Brown, which he did not do, next proceeded to the proof of their loss. For this purpose, J. Brown, one of the lessors, was sworn ; and testified, that about a week after Benajah Broion's decease, he went to his house in Brunswick, where he had last, and for many years resided, to obtain possession of the will. That the witness made search for it, in the desk where his father said he had left it; but could not find it. He found the key of the desk. It was locked ; but in such a situation that it could be opened with other keys. His father died at the witness’ house in Poundridge, West-chester county, about 130 miles from Brunswick. Nancy Ayres, a daughter of Benajah Brown, was then sworn as a witness for the plaintiff; and testified that she lived with her father, when he went from Brunswick to Poundridge, which was in April, 1822. On the 1 st day of the next preceding March, she saw an article in a small drawer in the desk of her father, at his house in Brunswick, purporting to be his will; and had no doubt it was his will; read enough of it to see how the daughters were provided for. After that, and a few days before he went from home, she saw him take some papers out of the desk and burn them; but did not know, and could not say they resembled the will. She never examined the desk after-wards. Intermediate her seeing the will and his going away, she saw bins several times engaged arranging his papers at that desk ; whence he took a considerable bundle of papers, and put into his trunk. Mr. Mallory, called again, swore that he was one of the subscribing witnesses to the will, and Wm. L. Marcy, Esq. was another. Mr. Mallory swore to the due execution of the will; but could not remember who was the third witness. That some years after the will was executed, the deceased called for, and took it, stating that he was going to his son James'; and was about to make some alterations, or make a codicil to his will. The will was written on one sheet of letter paper : and the witness thought it was not slit.
    
      The plaintiff then offered parol evidence of the contents of the will. This was objected to, because sufficient proof had not been given of its existence at the time of the testator’s death. The judge said his opinion was, that if the will had been destroyed before the testator’s death, though without his knowledge, it was not a valid will. But, on this point, the verdict had better be taken subject to the opinion of the court. That he thought the testimony too slight to repel the presumption that the testator destroyed the will. But for the purpose of bringing the whole matter in dispute before the supreme court, he would receive the testimony subject to the opinion of that court. The defendant then objected to the proposed testimony, on the ground that the execution of the will was not sufficiently proved, till the names of all three of the subscribing witnesses should be disclosed.
    
      Ezra Lockwood was then called, who testified, that about the 1th of July, 1821, the deceased brought to the witness’ d welling house in Poundridge, a paper purporting to be his last will, on one sheet of letter paper, not slit or cut open, witnessed by Mr. Mallory, Mr. Marcy, and another whose name he did not recollect; and requested the witness to write and add a codicil, which he did ; and his impression was, that it was attached to the wTill by a seal. The codicil was properly attested to pass real estate. The witness then sealed up the will and codicil, and gave them back to the deceased. The codicil altered the will merely by placing some of the devisees under the care of a trustee. Nancy Ayres, again called, did not recollect there was more than one paper ; saw the seal of the wrapper was broken open ; opened it, and saw the will; there might have been an article attached to it; presumed there was more than one sheet of the w ill; but whether it was attached together, she could not say. James Brown was named executor. She did not read the will through. Mr. .Marcy swore to substantially the same facts as Mr. Mallory. The former drew the will. Mr. Lockwood, called again, said he thought the codicil was written on one page of half a sheet; and it was his impression that it was writ' ten reac¡ tUrning over the leaf.
    The plaintiff then offered an authenticated record of the °f the deceased, exemplified under the seal of the surrogate of Rensselaer county. The judge rejected the evidence.
    
      Nancy Ayres, called again, stated that there wras no whole sheet of paper of the will. The paper wras held, or attached together at the top by something. Did not know how far she read the paper; and had no recollection that she turned over and examined the second page ; believed she examined it carelessly ; and looked it through ; but has no recollection that she did. If her father’s name was to the paper, she probably saw it; but has no recollection that she did. She might have had it in her hand a minute ; but did not know; thought there was written on the cover, “ The last will and testament of Benajah Broten.” Did not know how many folds or pieces of paper the will consisted of.
    The judge then ruled, that the testimony failed to show satisfactorily, that the paper seen by Mrs. Ayres, March ist, 1822, was the will spoken of by Messrs. Mallory, Marcy, and Lockiuood; and that if proof of the codicil was to be considered proof of the execution of the will ; yet the plaintiff could not be permitted to show the contents of the latter, without first giving evidence of its existence, after it was delivered by Mr. Lockwood to the deceased in July, 1821.
    The plaintiff then offered to prove the declarations of the deceased, made on the day he was taken ill, before his last sickness, that in April, 1822, when he left his house in Brunswick, he left his will and codicil mentioned by Mr. Lockwood in the drawer mentioned by Mrs. Ayres. That in April, 1822, he applied to Mr. Lockwood to write another codicil, of the description mentioned by Mr. Lockwood. That the deceased repeatedly declared, during his last illness, and in articulo mortis, to Brown, the executor, that he had left his will and codicil in bis desk at Brunswick ; and stated where the key was left.
    This evidence being objected to, was overruled by the judge, who directed a nonsuit to be entered ; the plaintiff having no farther evidence.
    
      J. P. Cushman, for the plaintiff,
    moved to set aside the nonsuit, and for a new trial. He said the execution of the will was sufficiently proved ; and there is no sufficient evidence of its revocation. (Dan v. Brown, 4 Cowen, 490. 4 Burr. 2514.) James Brown was a competent witness to prove the loss ; and this was sufficiently established by his testimony. (4 Cowen, 491.) Search was made in the place where the will was, most probably, to be found ; (Jackson v. Hasbrouck, 12 John. 192 ;) and whether a bundle of papers was, or was not in the trunk at some time, cannot be material. If reasonable diligence be shown, it is enough. (id.) The judge erred in excluding proof of the contents of the will. It was not necessary to prove) that it had been seen after it was handed by Lockwood to the testator. (Dan v. Brown, 4 Cowen, 490.) But if otherwise, it should have been put to the jury to judge of the weight of Mrs. Ayres’ evidence, as to the identity of the paper she examined. It was a question of fact. The judge also erred in requiring proof of the third witness, (id.)
    
    
      J. Paine, contra.
    The evidence shows that the deceased destroyed his will, if he ever made one. But if otherwise, the search proved was not sufficient to warrant a presumption of loss. Search should have been made in the testator’s trunk, as well as in his desk. The declarations of the deceased were properly excluded. (Dan v. Brown, 4 Cowen, 490.) Notice to the defendant to produce the will and codicil could have no effect. There was no evidence that he ever had them in his possession. The exemplification from the surrogate’s office, was properly rejected. (1 Phil. Ev. 433, 1 Am. ed.) The plaintiff was not prejudiced by the decision, that the third witness must be disclosed. That defect was afterwards sup* plied ; the decision went for nothing, therefore ; and can be no reason for setting aside the nonsuit. (3 John. Rep. 528. 10 id. 447.) The ' mere facts that the testator made a will, which could not be found after his death, are not sufficient to establish it. The legal inference is, that the testator destroyed it himself. 1
    
      
       This cause was decided in May term last.
    
   Curia, per

Suthehi.aNd, J.

’The judge nonsuited the plaintiff, on the ground that there- was not sufficient evidence of the identy of the will drawn by Marcy in 1816, and proved by him and Mallary and Lockwood, and that seen by Mrs. Ayres in the desk of the testator, in March, 1822: that parol evidence of the contents of the will drawn by Marcy, could not be received ; inasmuch as there was no evidence of its existence subsequent to July, 1821, when Lockwood drew a codicil for the testator-, which, after it was, duly executed, was attached to the will, and both delivered by him to the testator.

There certainly was evidence enough upon this point to go to the jury ; and I think the learned judge erred in not submitting it to their determination. It was a question of fact, which it was their peculiar province to decide.

Whether the will of the testator was among the papers which Mrs. Ayres testified that her father burned in March, 1822, before he went to Westchester, should also, I think, have been submitted to the jury. The evidence upon that point, is of such a character, that we should not disturb any conclusion to which the jury might have come.

The declarations of the testator during his last sickness, as to the existence of his wrill, and the place where it would be found, were incompetent evidence, and were properly rejected by the judge. This point w-as decided in Dan v. Brown, (4 Cowen, 490,) inrelationto this very will. (And vid. 3 Barnw. & Alders. 489. 2 John. 31. 2 Phil. Ev. 197, and the cases there cited.)

It was also decided in Dan v. Brown, that it was not essential to the due proof of the will, that the name of the third witness should be ascertained ; the fact that it was attested by three witnesses, having been established.

Assuming the execution of the will, and its existence at the time of the testator’s death, to have been established ; the evidence of its subsequent loss, or destruction, was sufficient to let in parol proof of its contents. Diligent search was shown to have been made, where it was most likely to be found ; in the desk of the testator, where he kept his papers, at his usual place of residence. This was •prima facie sufficient. (4 Cowen, 491. 12 John. 192.)

On these grounds, a new trial must be granted, with costs to abide the event.

New trial granted.  