Jackson ex dem. Bush v. Hasbrouck — 12 Johns. 192

Majority

p. 192

Jackson, ex dem. Bush and others, against Hasbrouck.

Headnote

To entitle a party to give paroi evidence of the contenta of a will, aNeatroyed,bwhere conclusive1 evisoiute °desti'ucmust show th!u düigenueareh terti^wif to tllhSeeP-tawouM most probably he found, if in existence, as thetsur”ogCate°i' where "the1 testotthedóffice° of profiafes^ or of the executors.

THIS was an action of ejectment, for a farm in Marbletown„ J ’ 5 m Ulster county, and was tried at the Ulster circuit, in Novemher, 1812, before Mr. Justice ran Ness.

A witness for the plaintiff aged 70 years, testified, that he wasywell acquainted with the premises in question, which belonged to Simeon Van Wagenen, who died seised thereof in l^6ff leaving three sons and five daughters. That Van Wagenen ma^e a WM) which was in the possession of his children a^er his death, by which he devised to them, respectively, rea* and personal estate, and which they held, according to the will. Hendrick Bush married one of the testator’s daugh- . e , _ - ters, and he and barret, the son of the testator, were m possession of the premises, being 200 acres of land, until Bush sold them,' in 1764, to James Van Wagenen. Bush told the wit-Fess> that he held under the will, and was to have the land duhis wife’s life, after which it was to go to his children, Many years ago, Hendrick Bush and James Van Wagenen called on Matthew Canting, and requested him to draw a deed of the

p. 193

premises from Bush and his wife, to James Fan. Wagenen,* and Cantine said it would do no good to draw the deed, unless the will of Simeon Fan Wagenen was destroyed, The witness fur-: thér stated, that there .were three witnesses to the will, and that he had heard if read; and that Matthew Cantine said it was a good will; that James Hamilton, Who drew the will, was alive, and then in court; and that the only surviving child of the "testator was then 90 years old.

Another witness testified, that Bush and his wife, and Johtxnnes Fan Wagenen, told him, that the will was at Peter Refinance’s, who married a daughter of the testator. Garrit Fan Wagenen told him, the will was gone, but Where he did not know. On his cross examination,- he said, a copy of the will Was with Peter Hermanee, and that Bush and James Fan Wagenen said the will was destroyed.

The deed from Bush and his. wife, to James Fan Wagenen, was produced, and was dated the 27th June, 1784, for the premises in question; a witness' testified, that when Cantine was applied to to draw the deed, a difficulty arose about the exchange of farms, between Bush and his wife, and James Fan. Wagenen, on account of the provisions in the will.

Another witness testified, that H. Bush, in his life time, repeatedly said, that he, and James Fan Wagenen, destroyed the will, at the time they exchanged farms. The children of H, Bush are the lessors of the plaintiff*

The defendant proved, that James Fan Wagenen wag in possession of the premises, and was afterwards convicted under the act of attainder, in August, 1781; and the premises in question were, in February, 1782, conveyed by the commissioners of forfeiture, to Cornelius E. Wynkoop, who, on the 10th April, 1782, conveyed' the same to Isaac Hasbróuck, who died about twenty-five years ago, and his son, the present defendant, entered, and has since continued in possession.

The judge charged the jury, that it was questionable whether there was sufficient evidence of the execution of the will, to show its existence as a good and valid will; but, without giving any opinion on that’point, he thought there was not sufficient evidence of the destruction or loss of the will, to allow paroi evidence_of>its contents to be givenand whether the evideucoof the possession of the defendant and his ancestor, was not sufficient to- bar the plaintiff, notwithstanding the evidence-.of th®

p. 194

confessions- of those under whom he claimed, was a question of fact for the jury to decide. The jury found a. verdict for the defendant-,

A motion was made to set aside the verdict, and fora new trial.

L. Elmendorf, for the plaintiff.

Sudam, contra.

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 Her mance 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.