Fetherly v. Waggoner — 11 N.Y. 599

Majority

p. 600

*Fetherly and others vs. Waggoner.

Headnote

Where a witness testified that she was called upon to witness the execution of a will, that the testator signed it in the presence of herself, her husband and a third person, that she and her husband witnessed it, but that she did not recollect that the other person signed his name as a witness, it was held, in the case of a lost will, thirty-six years old, that the evidence was competent to submit to the jury, and that it would authorize the finding of the due execution of the will.

A will more than 30 years old, and possession of lands held in conformity to it for that length of time may be read in evidence, without proof of its execution.

Where the existence, due execution and loss of a will are proved, its contents may be shown by parol ; and the proof of the loss being addressed to the court, need not be as strict and technical as when submitted to a jury.

In an action of ejectment, in which the plaintiff derives title from his grandfather, and which is brought subsequent to the death of his father and mother, admissions made by the father and mother during their lifetime, as to the existence and loss of a will alleged to have been executed by the grandfather, may properly be received in evidence.

This was an action of ejectment, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges.

The plaintiffs are the heirs at law of Rebecca Fetherly, daughter of Frederick Ramsey, who, in his life time was the owner of a farm of 119. acres of land in the town of Guilderland, whereof he died seised upwards of 30 years before the trial of this cause. Frederick Ramsey left five sons and four daughters, one of which daughters, Rebecca, the mother of the plaintiffs, married Philip Fetherly, and died before her husband, who departed this life seven or eight years since. After the death of Frederick Ramsey, his widow and part of her family continued to reside on the farm until the death of the widow, which happened 17 or 18 years ago. The defendant is in possession of the one half of the farm, for the recovery of the one ninth part whereof, this action is brought. On the part of the defendant it was proved that the farm of Frederick Ramsey, upon his death, was divided between two of his sons, named ^Frederick and Philip, the latter taking possession of the half now in the possession of the defendant. These facts were elicited by the defendant on the cross-examination of one Crouns, a witness for the plaintiffs, who also stated that his father was reputed to be one of the executors of Frederick Ramsey, and managed the personal estate of Mr. Ramsey, after his death. The defendant then produced a deed from Philip Ramsey to Guysbert Sharp, bearing date 10th November, 1814, conveying to Sharp the one half of the farm, and also produced sundry other mesne conveyances by which the title of Philip Ramsey was vested in Peter Waggoner, the landlord of the defendant. Alida Truax, a witness for the defendant, testified that about thirty-six years since, she was called upon to witness the execution of the will of Frederick Ramsey, who signed a paper in the presence of herself, her late husband John Quackenbush and John Van Valkenburgh, declaring it to be his last will and testament. She and her husband witnessed the will, she witnessing it by making her mark, but she said she did not recollect that Van Valkenburgh witnessed it. She does not know the con

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tents of the will; her husband and Van Valkenburgh are both dead. On her cross-examination, she said that the testator- wrote her name to the will, and she made her mark; that she did not then recollect that at the time when she witnessed the will, there was any other person in the room besides the testator and his wife and herself and her husband.

The defendant then offered to prove by James Platt, a son-in-law of Frederick Ramsey, that shortly after the death of Frederick Ramsey, he, the witness, was present at a meeting of all the heirs at law of Frederick Ramsey, among whom were the ancestors of the plaintiffs, when the will of Frederick Ramsey was read as a valid will and testament, and acquiesced in by all. the heirs ; that it gave the land to the sons and the personal property to the daughters of the testator, who thereupon divided and went into possession of the property accordingly. The defendant further offered to prove, by another witness, that both the father and mother of the plaintiffs, down to the time of the decease of the mother, admitted that they had in their possession a legal and valid last will and Testament of Frederick Ramsey, which gave all the real estate of the testator to his sons, and his personal property to his daughters; and that after the death of the mother, the father of the plaintiffs declared that the will had been lost or taken from him. He also offered to prove that the father and mother of the plaintiffs took, under the will of Frederick Ramsey, their share of the personal property; and further, that search had been made for the will in every place where it was likely to be found, but without success. All which evidence, thus offered to be given, was objected to by the plaintiffs’ counsel and rejected by the judge as inadmissible, on the ground that the execution of the will of Frederick Ramsey had not been duly proved. The defendant excepted to the decision of the judge. The jury found a verdict for the plaintiffs, which was now- moved to be set aside on a hill of exceptions duly tendered and signed.

A. Taber, for the defendant.

M. T. Reynolds, for the plaintiffs.

By the Court,

There must be a new trial in this cause. It is undoubtedly material to show, in the proof of the regular execution of a will, that the testator signed the same in the presence of all the three subscribing witnesses ; and this we are of opinion was in fact proved, if the jury believed the witness, Alida Truax. She swore expressly that she saw the testator sign the will, that the three witnesses were present, and that she and her husband witnessed it, she being called in for that express purpose. It is true she stated that she did not then remember that Van Valkenburgh witnessed the will, and on her cross-examination, said that she did not then recollect that any person was in the room when she witnessed the will besides the testator and his wife, and herself and her husband. But it must be recollected that she was speaking of a transaction some thirty-six years old, and if she could not call to her remembrance all the facts minutely, so as to be able to state them distinctly and positively her evidence is *not therefore to be altogether disregarded. I understand from her testimony that she intended to swear to her belief that Van Valkenburgh signed the will, though she could not recollect the particular fact. Her evidence should have gone to the jury, and if she was an intelligent, respectable witness, they should have found in favor of the execution of the will. But, independently of this testimony, I am of opinion the evidence offered and rejected was sufficient to have authorized the proof of the contents of the will. It was more than 30 years old, and it was offered to be shown the premises had been held under it from the death of the testator. Now if the will had been produced, and the execution of it had appeared re

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guiar on its face, under the proof offered, it ought to have been received in evidence without requiring proof of its execution. 3 Johns. Cas. 283 . 3 id. 292 . 7 Wendell, 374. 5 Cowen, 221. Phil. Ev. 385, n.

If the will is lost or destroyed, as in the case of any other deed, the next best evidence of its execution and contents is admissible, Phil. Ev. 347, 8; Peake’s Ev. app. 66; Keeling v. Ball, 2 East, 183; 2 Caines, 363; 12 Johns. R. 192; and the proof of the loss being addressed exclusively to the court, and for the satisfaction of the judge, need not be as strict and technical as is required by the general rules of evidence. 4 Cowen, 483. Phil. Ev. 97, 8.

It cannot be doubted that the testimony 'of Mrs. Truax, together with that offered to be given by Platt and Fetherly, was competent and sufficient evidence to prove the existence and contents of the will; nor can I perceive any valid objection to the admission of Philip Fetherly, the father of the plaintiffs, that the will was lost and had been taken from him. It is true that the plaintiffs did not derive their title from either their father or mother, and that the latter was a feme covert when she admitted the existence of the will. Yet the father of the plaintiffs had an interest for life in the premises at the time, against which the admissions were made; and the mother might have been a witness to prove the existence or loss of the will while a feme covert. This would not have been incompatible with the principle of law that a feme covert cannot alien her estate, or do any act in law to the prejudice *of it, except according to the statute. Her admission, in its remote consequences, might tend to affect her title to the property, but it seems to me not to fall within the meaning of the rule of law, when used in this collateral manner, for the purpose of satisfying the judge of a fact. The admission was against her interest, and by the ancestor of the plaintiffs through whom they claim. But aside from the confessions of either of these parties, the evidence offered, including that of search for the will, and which was free from any objection, was, in my judgment, sufficient to show the existence and loss of the will, and to authorize secondary evidence of its contents.

Upon the ground, then, that the secondary evidence of its contents was admissible, was the execution of it sufficiently established 1 It was, as before said, some thirty-six years old, and would have proved itself, if produced and the execution of it appeared regular on its face. The best evidence of which the nature of the case admits is competent for this purpose. Peake Ev. app. 66. Keeling v. Ball, 2 East, 183. Phil. Ev. 385. The only objection to the most strict proof of the execution of the will that can be exacted under any circumstances is, that it was attested by only two witnesses ; but making reasonable allowance for the great lapse of time and the difficulty of proof, the testimony of Mrs. Truax together with that offered to be given by Platt, a son-in-law of the testator, and that which was given by Crouns on his cross examination, it seems to me there cannot be a doubt that it was duly attested by three witnesses. Whether it was or not must at this late day depend upon circumstances, and upon those the jury may find the fact of execution.

New trial granted.