Dan v. Brown, 4 Cow. 483

Curia, per

Woodworth, J,

The will of Benajah Brown was proved by one of the subscribing witnesses. He stated that it was executed in presence of himself, James Mallory and another person, whose name he did not recollect ; but had no doubt of his being a credible witness. This-was all the evidence that could be expected, under the circumstances of the case. It was, prima.facie, sufficient. In the case of Hands v. James, (Com, Rep. 531,) where all the witnesses were dead, it was submitted to the jury to determine, whether the witnesses to the will set their names in the presence of the testator, merely upon circumstances, without any positive proof; upon the ground that there could not, probably, be any express proof, as few are usually present beside the devisor and witnesses, and, from the nature of the case, the proof must be circumstantial. It was observed that three witnesses had set their names; and it must be intended that they did it re gularly; that one witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary. Here the attorney drew the will, subscribed it as a witness, and testifies to every thing but the name of the third witness. It seems to me, that, from this, the presumption of due execution is irresistible.

The execution of the will being- established, the next question is, whether there was any evidence that it was cancelled. On this point, I lay no stress upon the declarations of the testator. They were made long after the execution of the will, and shortly before his death. They are not evidence, unless they relate to the res gestee, or to an act done; as where, by mistake, the will is tom or thrown into the fire. The declarations of the testator are, in such cases, evidence, where they show the quo animo. (12 John. Rep. 33.) The act of cancelling is, in itself, equivocal, and will be governed by the intent. The rule is, that if the testator lets the will stand until he dies, it is his will; if he does not suffer it to do so, it is not his will. It is ambulatory until his death. (4 Burr. 2514.) There must be a cancelling animo revocandi. Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation. (2 Bl. Rep. 1044.) The evidence here does not warrant any such intent. The testator, several months before his death, called for the will, and wished to add a codicil. There is no other act that indicates an intent to make the least alteration. No act was done, or dissatisfaction expressed upon which to raise a presumption. The most that can be urged is, that the testator expressed a desire to make some alteration by way of codicil, from which it is rather to be inferred that the general features of the will were approved, and that an additional, or greater provision, was contemplated, for some of the objects of his bounty. The conclusive answer is, that all this was inchoate. It rests merely in an intent expressed at one time, and to a single individual. We are left entirely to conjecture, whether the testator ever afterwards did a single act to warrant the presumption of cancelling the will, in whole or in part. I, therefore, consider the will as remaining in force at the testator’s death.

The more important question is, whether it sufficiently appears that there has been diligent search for the will where it was most likely to be found, so as to warrant the introduction of secondary evidence. The general rule is, that to entitle a party to give parol evidence of the contents of a will, when there is not conclusive evidence of its destruction, it must be shown that diligent search has been made in those places where it would most probably be found. (12 John. 192.)

In examining this question, I will first consider the place where the will was most likely to be found. The will not having been recorded, no resort need be had to a public office. It is last traced to the hands of the testator, who resided in Brunswick. His desk and other papers were there. He died from home on a visit to his children in Westchester. I think the defendants are bound to show due search among the papers of the deceased, at his usual place of residence; and if, on such search, the will cannot be found, parol evidence is admissible. James Brown might have been examined as a witness to the Court, on this collateral point, but he was not. The question then rests on the evidence introduced by the plaintiff. Any declarations of Brown, independent of that, are not evidence.

James Mallory testified that Jared Betts, one of the plaintiffs, informed him that the will could not be found; that James Brown had been up to Brunswick, and looked for the will in the desk, where he supposed it was left, and it could not be found. This is certainly a very explicit admission by one of the plaintiffs. Harvey Betts and Thaddeus Dan stated to the surrogate, that they presumed there had been a will, but it could not be found; and that search had been made. The plaintiff’s counsel introduced the petition and affidavit of Brown, Betts and Dan, to obtain administration. These, however,-are silent as to the question,- whether due search had been made. '

The defendants, who claim under the will, were called on to prove that they had made diligent- search.. Search' by other persons, and not at their request, will not suffice. The admission, by Jared Betts and Thaddeus Dan to the surrogate,'was, not that Brown, or either of the defendants, had made search, but generally, that the will could not be found. In what manner; and by whom search was-made, they do not state. It was an admission that did not exonerate the defendants from giving affirmative proof of search made by them or' some of them.

The only evidence remaining, is the statement made by Jared Betts on another occasion. - Although-this admission, might have been sufficient to conclude him, if he had been the, only plaintiff, it ought not to affect the interest of the other plaintiffs who claim as tenants in common with him. If an ejectment is brought by tenants in common, the plaintiff, may give in evidence the separate titles of the several-lessors to separate parts of the premises, and recover accordingly. (12 John. 185.) But it would seem an unjust rule, which would suffer one tenant in common to admit away the rights of others. As far as I have been able to discover, an admission by a party to the record is evidence against him-who makes it; and where there are partners, against; them also; but hot against others who happen to be joined as parties to-the suit. The eases which speak of the admission as proper evidence, will be found to have reference to a sole plaintiff or defendant. The confession, then, of Jared Betts, that Brown had made search, was no-evidence to dispense with the production of the will, and furnished no ground to admit secondary evidence, so far as the other plaintiffs-were concerned. On this point, the verdict should, 3e set; aside, and a new trial granted.

New trial granted.

Case Details

Case Name: Dan v. Brown

Court Name: New York Supreme Court

Date Published: May 15, 1825

Citation: 4 Cow. 483

Court Abbreviation: N.Y. Sup. Ct.