82 Va. 776 | Va. | 1887
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Buckingham county, Virginia, rendered at the October term, 1888, upon a proceeding to set up a lost will, before a special commissioner of the circuit court, appointed for the purpose of setting up lost records. In February, 1879, Dowdy and wife filed their petition before the special commissioner, to set up the will of one Jacob Duncan, alleging that he died leaving a will, which was probated and was destroyed by fire in February, 1869; that they desired to re-establish it; that they knew of no official copy of the same; that the appellant and one Gormus and wife were the only other persons interested in the matter. One witness was introduced. In 1880 her deposition was taken. Her testimony was that she was in her eighty-fifth year; that she was the daughter of the testator; that in 1812, sixty-eight years before, her father had died, being an infant, she had a guardian appointed to protect her interests under the will of her father; that she had at that time seen the will, and heard it read by a Mr. Ford, in the presence of her mother and a Mr. Ayres and Peter Duncan; that the contents were that a negro man was given to her; that the testator gave all the rest of his property to her mother for her life; at her death all the personal property was to be sold, and the
It appears by a deed filed in the cause that the appellant was the purchaser of the land in question in 1862, from Peter Duncan, from whom he received a deed with general warranty. The petition was filed in 1879 ten years after the fire which destroyed the will. The female appellee, Mary F., being left a child by Peter Du.ncan, coming to womanhood, married the male petitioner, Thomas F., and they brought this suit.' There was a decree setting up the will according to the foregoing statement of the witness called to establish it, when the appellant tendered his bill of review to correct alleged’errors apparent against him, which was rejected by the court, and he appealed.
There are numerous assignments of error, which need not be reviewed here, in the view we take of the case.
The objection to the proceeding on account of the use of parol and secondary evidence cannot be sustained. It calls in such only when the best evidence is wanting, and not attainable. In a case where the best evidence is wanting—when a record is lost, upon which rights depend, when no copy is to be had—the legislature has provided this remedy, and in doing so no rule of law is violated or changed. The best evidence is requisite, if such can be had, always; but that not being attainable, a resort to secondary evidence is essential, if the rights are to be preserved. In times of war and pillage, when clerks’ offices have been rifled by a public enemy, or clerks’ offices, or other repositories of public records are destroyed by fire, all titles are rendered precarious, and a want common to all renders it necessary that such methods shall be resorted
In Smith v. Carter, decided by this court in 1825 (3 Rand. 169), a long and continued possession was succesfully defended by parol proof of the contents of a will which had been probated, and afterwards destroyed by fire, during the war of the Revolution; the court saying that this was the best evidence which the nature of the case would admit of, that being a proceeding in ejectment; the court remarking, however: “Though parol proof of the contents of an instrument must be generally very defective (it being seldom possible, after a lapse of time that the witness can recollect the precise expressions in it, or their collocation, on which its meaning often depends).”
Mr. Greenleaf says: “If the record is lost, after proof of the loss, its contents may be proved like any other document, by any secondary evidence, when the case does not, from its nature, disclose the existence of other and better evidence. It must, however, be kept in view that while the best evidence the nature of the case will admit of is admissible, and so when no other is to be had, the evidence of the contents of a lost will, dependent upon the recollection of a witness, may be held to be admissible, but the weight of this sort of evidence is quite another question, wherein we must consider the means of knowledge of the witness, the power of recollection necessary, and the character of the question at issue.”
For example, if perfect knowledge, a reasonable time, and a simple fact be the question, and the witness reasonably intelligent, the contents might be satisfactorily proved by the recoltion of the witness. Thus, an intelligent witness, called upon to prove the contents of a will recently read by the witness,
The deed to the appellant was made by the father of the female appellee many years ago, and was probably soon after the birth of a child. In the deed the will of Jacob Duncan is recited, and for seventeen years the title of the appellant was never questioned, and, after the death of Peter Duntian, nothing was heard of this claim about the degree of his estate until the will itself had been destroyed. This title and possession in the appellant should be disturbed only upon preponderating proof, whereas it appears that the testimony of the witness relied on for that purpose is insufficient for the purpose for which it is used. Such knowledge as hers must be distinguished from
The case of Morris v. Swaney, 7 Heis. 591, was a proceeding to set up a will lost before probate. The case was tried by a jury, who found for the will. It was a case of alleged suppression of a will by the heirs at law, after the death of the testator, and while the residence was entirely in their possession. The evidence showed that the tract of land was purchased for a woman, and the illegitimate children of the testator; that they were put in possession by the testator; and that the will was made and duly executed by the testator, and properly attested. The evidence of several witnesses proved the contents of the will, from having seen and heard it read, and from the declarations of the testator. The court held such evidence clearly admissible; but it was a case of much conflict of testimony. The court said: “ The question as to the credibility of witnesses is peculiarly one for a jury. The question is whether the verdict is sufficiently sustained by the evidence. In many of the cases in our court upon this subject it has been said that this court will not reverse upon the facts, if there is
This language is cited in the case of Morris v. Swaney, supra, with the words in italics, “ so much severity of scrutiny is exercised,” omitted; remarking further: “There is no doubt that the knowledge of a witness who only hears a paper read is not of as high a character as that of a witness who reads for himself, for the witness who hears it read cannot know that it is correctly read to him. Still his evidence must be admissible; how satisfactory it will be depends upon other circumstances,” and expressly in that case, saying: “And here again we repeat that we express no opinion as to what would be our conclusion were it our duty to determine from this evidence whether the complainants have fully and clearly made out their case. There are cases that hold that the contents of the will could not be established except upon the evidence of those who have seen and read it, and that the declarations of the decedent, or the professed reading of the decedent, are not even admissible, except as corroborative of more direct evidence.” Chisholm v. Ben, 7 B. Mon. 408, and cases cited.
But, for reasons already stated, we think such evidence is admissible where it is the best evidence the nature of the case will admit of. But it does not follow that any and every degree of proof will be sufficient. In this case it is sought to
We think the circuit court erred in the decree of October term, 1883, setting up this will, and the same will be reversed and a decree entered here dismissing the petition of the plaintiffs.
Decree reversed.