12 Johns. 192 | N.Y. Sup. Ct. | 1815
The motion for a new trial must be denied. The only question in the case, is, whether there was such evidence of the loss of the will of Simeon Van Wagenen, as to authorize the admission of paroi proof of it. The witnesses who speak of the- acknowledgments and declarations of the Van Wagenens, as to the loss of the will, are inconsistent and contradictory. They would seem, however, to trace the will, or a copy of it, into the possession of Peter Hermance. But there was no proof of any inquiry having been made of Hermance for it. The testimony does not warrant the conclusion of an absolute destruction of the will, and it was therefore necessary to show, at least, reasonable diligence to find it, before paroi proof of its contents could be admitted. It was incumbent on the party to have made examination, in the office of the surrogate of the county where the testator died, or in the office of the judge of probates, or to have made nquiry of the executors, if known. Nothing of this kind appears to have been done. And it Would be too loose and dangerous a rule to admit paroi proof of a writing, without more satisfactory evidence of its not being in the power of the party to produce the instrument itself.
Motion denied.
