#### Eure and wife v. Pittman.

} From Halifax.

To entitle a party to give parol evidence of the contents or execution of a will alleged to have been destroyed, where there is not sufficient evidence to warrant the conclusion of its actual destruction, the party must show that he has made diligent inquiry and search after the wili, in the place where it would most probably be found if in existence.

It is the province of the Court, in the first instance, to say whether there is sufficient proof of the loss or destruction of the paper, or whether sufficient inquiry has been made to let in parol evidence.

The plaintiffs offered for probate a paper writing as the last will and testament of Edward Crowell, deceased; there was a caveat in the County Court, and after trial there, it was carried by appeal to the Superior Court. The wife of the legatee named in the ¡taper (Thomas W. Crowell, son of Edward,) is now one of the plaintiffs, having since the death of her first husband married Eure; the defendant is the other child of Edward Crowell, who, at her father’s death, was the wife of one Pittman.

The writing offered was proved to be in the hand writing of Edward Crowell, all and every part of it, by four credible witnesses, who deposed that they were well acquainted with his hand writing. One of these witnesses deposed that the paper was found by him in a small drawer of the desk of Edward Crowell, in Ms house, with *365other papers and money; the drawer had a lode, but was unlocked when this paper was found. A

The defendant contended that this will was revoked by a subsequent will made by Edward Crowell, and that the last will had been destroyed or suppressed by the plaintiffs, or by those under whom they derived an interest, or by some other person under their advice and procurement, and offered to prove the same by the subscribing witnesses to the last will: this was objected to by the plaintiffs, because they had no notice to produce the will. The Court was of opinion, that if the plaintiffs had the last will, or had been the cause of its suppression, or claimed under those who had; then such conduct would be illegal and fraudulent, and the defendant was not bound to give notice to produce it, in order to be let into parol proof of its contents. The plaintiffs farther objected to any parol proof of the contents of a lost or suppressed will, before the fact of loss or suppression had been established by a Court of competent jurisdiction. This objection was overruled.

The defendant then called as witnesses Jacob Pope and his daughter*. Pope deposed that Edward Crowell died on Wednesday. On the preceding Sunday, May 26, 1820, he came to the house of Pope, with a paper writing in his hand, having his name signed to it, and said that it was his last will and testament, and requested Pope to attest it; Pope did subscribe it as a witness in Crowell’s presence: Crowell then asked if there was no other person in the house capable of attesting it, and was informed that. Miss Pope was in an adjoining room; Pope wrent for his daughter, brought her to Crowell, and told her that Crowell wished her to be a witness to his will; this declaration was in Crowell’s presence and hearing. She took the paper, and when about to sign it Crowell requested her to be careful and subscribe her name in the proper place. Miss Pope stated, that she signed the paper as a witness, and confirmed her father’s statement as to the *366circumstances attending her attestation: neither of these witnesses read the will or heard it read, nor did Crowell say. that the signature was his, or that he had directed it †0 jje piaced there. After they had witnessed it, Crowell carried it away with him.

The defendant then introduced another witness, who swore that Crowell, on the-27th of May, 1820, placed the last mentioned will in the possession of one Rebecca Tillery, who was the sister of Mrs. Eure, one of the plaintiffs, and who resided at the house of Mrs. Eure’s then husband, Thomas W* Crowell, only son of the testator. Edward Crowell shot himself on Wednesday the. 29th of May, 1820, and shortly after, on the same day, Thomas W. Crowell cut his throat and died. When it wras reported that Edward Crowell was dead, the witness, and Mrs. Eure the plaintiff, and her sister Rebecca Tillery, went to E. Crowell’s house, but did not go in; while there, the defendant and her husband Pittman arrived, and with others entered the house, and in the after part of the day witness returned to E. Crowell’s from the house of Thomas, which was distant about three hundred yards, and there found the defendant and others. Rebecca Tillery was summoned by both parties, but did not appear.

The Court charged the jury, that if they were of opinion that there was a will in writing signed by the testator, or to which bis name was subscribed by his direction, and witnessed by two witnesses in his presence, and declared to be his will; then the paper now offered would not be his last will: but that both wills might stand, if there was no clause of revocation in the last will, or if there were not contradictory bequests or devises, and that the burden of proof was on the defendant to show, by the last will itself, if to be had, that it revoked the former by containing an express clause of revocation, or that the dispositions of the property by each will were contradictory. But the last will was not produced by-*367either party, nor were the contents of it given in evidence by any witness. The jury- should, if they believed the evidence, find the paper now offered to be the last will of Edward Crowell, unless they shoidd be of opinion, from all the evidence, that the last will had been suppressed by the plaintiffs, or those under whom the plaintiffs claim, or by their advice or procurement; in that case, they ought to find a verdict for the defendant, because they might presume a revocation, or contradictory devises from the fact of suppression. But if the jury should be of opinion that Rebecca Tillery, of her own accord, destroyed the. last will without the consent or knowledge of the plaintiffs, or those under whom they now claim, or if the testator destroyed it. then, in either of these events, they should find for the plaintiffs. If the testator destroyed the last will and retained the first, the firs' is again set up as his will. If Rebecca Tillery, the depository, destroyed the last will without any fraudulent co-operation of the plaintiffs, or those under whom they claim, then the burden lay on the defendant to show a clause of revocation or contradictory dispositions by the last will; that the defendant had failed to do so, either by the last will itself or by any other species of proof. The Court farther charged the jury, that there was nothing in the objection of plaintiff’s counsel to the last will, that the testator liad not said the signature was his, or because it was not proven to be Ms hand writing; but if they were satisfied that he offered a paper writing to the witnesses with his name signed, and said it was his will, that w as sufficient. Verdict for defendant, judgment accordingly, and appeal by plaintiffs.

Gaston, for appellant.

1. Evidence of the execution or contents of the last will was improper under the circumstances. The principle on which we object, is, that the best evidence is required; the instrument itself shall always be produced if *368possible, because it is better than a copy or than parol evidence of its contents or nature. (1 Phillips 167. 335. ' * 338. 340.)

Before any evidence of the contents of a lost or destroyed paper can be received, the fact of loss or destruction must be proved to the Court.- (12 Johns. 192. 16 Ibid 193.) If the will was in the possession of the witness Tillery, she should have been compelled to produce it.' (1 Phillips 335. 9 East 473. Norris’ Peake 141. note.)

If it was in the possession of the plaintiffs, they should have had notice to produce it. (2 Term It 201, 2.)

There was here no proof of its destruction, no subpoena duces tecum to the witness, no notice to the plaintiffs to produce it; in short, no pains taken at all to procure the best evidence, or furnish a legal ground for the admission of inferior testimony.

2. The Court erred in stating that the law was satis--fied as to the execution of the last will, if the signature was by testator’s direction: the act is positive, “ signed by him or some person in his presence and. by his direction.” Had the matter been left to the jury, and had they inferred that if signed by his direction it was also in his presence, perhaps it would have been not exceptionable. An acknowledgment of a signature by a testator, has in a Court sitting on both the law and the facts of a case, been received as proof of its having been made in his presence. (1 Ves. 11.)

3. The withholding of the new will is a fact proper to be left to a jury; and they are.to consider why it,was withholden; but it does not furnish a presumption of revocation in law. (Cowp. 92. Pow.-on Dev. 540, 1.)

Seawell, contra.

The principle upon which notice to produce a paper is required, is to prevent surprise, where, from the nature of the controversy, it is uncertain whether such evidence will be material on the trial, (Phillips 339. JIoxv v. Hall, 14 East 277. Opinion of Le Blanc, J.)m, for *369where the question to be tried apprises the party, as in trover, or in an indictment for .stealing a note, it i« not required. (Ibid.) Here there could be no surprise, if the plaintiffs had possession of the will, it was a fraud to attempt the proof of the prior will, and in such case no notice is necessary. (Phillips 340.)

■ The fact that the wife’s ;5ster, an inmate, was the depository, was proper evidence to be left to the jury. v sic. other circumstances,, to prove the spoliation of the wife, Aickle’s case. (Leach 245. 2d edition, note.)

If the plaintiffs had not possession, notice was not necessary,' and the contents might have been proven, as in Mlile’s case. (Phillips 339.) But the case here shows in express terms that the contents were not proven.

As to the charge below, we have just grounds of complaint and not the plaintiffs, for the jury was instructed that the destruction of the last will by the depository of her own accord, rendered it inefficient, and revoked it, ■though it was inconsistent with, or expressly revoked the former. It is as true as that the burning of the testator’s deeds or bonds by a depository of his own accord, destroys their effect. But the issue was fairly left to the jury, and it was competent for them to infer what they thought proper from all the circumstances: they might presume that the last will was suppressed by the depository through the means and contrivance of the’plaintiff her sister: nor was it a rash presumption that the latter will revoked the former. Why withhold it? Why did not the depository attend as a witness? In llarwood v. Good-right, (Cowp. 92.) lord Mansfield, in determining upon a special verdict, says, it would be proper for a jury to be governed by such presumptions as these.

But if these presumptions were made by the jury rashly, this Court cannot grant a new trial.

Reply.

Parol evidence is admissible to prove the contents of a writing which is the immediate subject of the *370action, without notice to produce it: but it is not. enough, it is referred to in the narration. Alexander v. CouU- • , ■ ter, (2 Serg. and Rawle 494. Norris’ Peake, 141. mies.) The bare circumstance of a party not having it in his power to produce a paper, is not a sufficient reason for admitting parol evidence: the question will be; whether, with proper exertions, he might not have had it in his power, and sometimes if the paper be in existence, whether its production be not indispensable. (2 Serg. and Rawle 31.)

It seems there is -no case where parol evidence has been admitted merely because the paper is in the hands of a third person, and a subpoena duces tecum has been refused. Ut supra.

If there is not conclusive evidence of the destruction of the will, to entitle i, party to give it in evidence, he must satisfy the Court that diligent search was made for it in those places where it was most-likely to be found. (12 ■Johns. 192. 16 Ibid 192. Norris’ Peake 142. note.)

Taylor, Chief Justice.

There is no proof that the Second will was ever in the plaintiff’s possession, and therefore a notice to produce it would be totally unnecessary; but there is evidence that the will was placed by the testator in the hands of Rebecca Tillery, since which period it has been traced no farther. Now the ground upon which the defendant offers proof of the execution of the will, is the charge of suppression against the plaintiff, or those under whom she claims. It appeal’s to me, that this fact should be first established by the best evidence the nature of the case admits of, that is, the testimony of Rebecca Tillery, and the production of the paper enforced by a subpoena duces tecum. I understand it to be an elementary rule, that when the ground of admitting the secondary evidence is the loss of the original, it ought to be shown that diligent inquiry has been made; and the last person into whose possession the paper has 'been traded, should be called to give an account of it* *371Opon this principle it has been decided, that to entitle a party to give parol evidence of the contents of a will, alleged to be destroyed,, where there is not sufficient evidence to warrant the conclusion of its absolute destruction, the party must show that he has made diligent search and inquiry- after the will, in those places where it would most probably be found if in existence. (12 John. 192.) And where it appeared that an indenture of apprenticeship consisted of two parts, one of which had been destroyed, and the other had come to the hands of a person that was living, and had not been subpoenaed, but had been heard to say that he could not find the part, and did not know where it was, it was held that this was not a •sufficient ground for admitting parol evidence of its contents. (6 Term Rep. 236.) In all such cases the invariable rule is, for the Court to pronounce in the first instance, whether there is sufficient proof of the loss or destruction of the paper, or whether sufficient inquiry had been made to render parol evidence of the contents admissible. But here the whole evidence, that of the suppression of the instrument, and the secondary evidence of its execution, was all submitted to the jury in the first instance, for which, practice I cannot find a single authority. And the principle of evidence is directly opposed to.it; for if the Courthad pronounced in the first instance whether the evidence of the suppression was sufficient to authorize the secondary evidence, it seems evident to me that it must have been rejected, both for its insufficiency as to the suppression, and its defect in not showing that proper inquiries respecting the paper had been made of Rebecca Tillery; and then, all the evidence respecting the execution of the will, and the. inferences drawn from it, that it operated a revocation of the first will, must have been excluded. The danger of such evidence consists in this, that it may unconsciously influence the judgment of the jury, and make impressions upon it which no subsequent advice of the Court will be able to efface.. The effect of such a procedure in this cas'd-. *372has been, that because the will was placed in the hands of -^e&eccffl Tillery, who was sister to the wife of the younger Crowell, the jury have inferred a suppression by him; or her; and because it was suppressed, they have farther inferred, that it amounted to a revocation of the first will; a string of inferences that might have been broken by the testimony of Rebecca Tillery, or by inquiries of her. The pope*, might have been produced, and might have turned out not to be a will, or, if a will, not amounting to a revocation of the first. The answer to this reasoning is, that however just it might be towards showing that the defendant ought not to be at liberty to prove the contents of the will, it is yet inconclusive to show, that he ought not to prove its execution, an isolated fact from which the jury would draw their conclusions. It strikes me, however, that it would be safer, in the view of a just and temperate decision of the cause, to prove its contents, rather than to conjecture them, under the influence of a belief that the will has been suppressed by the plaintiff. The presumptions which the law authorizes in its abhorrence of spoliation, are too unlimited and severe to be let loose, without clear and satisfactory proof of that spoliation. The existence of the paper, charged to be spoliated, should be proved positively, and not supposed, or inferred, from circumstances out of which the supposition-docs not necessarily or naturally arise, (2 P. ¡Tins. 720.) I am constrained to think, in this case, that sufficient efforts were not made to ascertain from Rebecca Tillery whether the will was in existence or not; and that it ought not to have been left to the jury to infer a suppression by her, or by the plaintiff, or those under whom she claims, from the single fact that it was delivered to Re~ becca Tillery.

Hall., Judge.-

I think the defendants ought not to have been permitted to prove the execution and existence •of another and subsequent will, before they made it ap*373pear to the Court that they had made reasonable efforts to procure it. And I think there would have been nothing * # unreasonable in this, for the will was proved to have been delivered to Miss Tillery, and a subpoena dims tecum might have been procured to enforce her attendance with the paper writing, or will, or account for it. It seems that the witnesses did not read the paper writing which Edward Crowell procured them to attest .as witnesses. They gave in evidence,' that he told them that it was his last will and testament. If that paper had been produced, the fact would have appeared whether it was a last will and testament or not. So far from endeavoring to procure it by subpoena duces tecum, they went to trial without the testimony of Miss Tillery, although she was summoned and did not attend.

As the defendants had taken no step to procure the will, and evidence was given to prove its execution, I think a new trial ought to be granted.. The charge of the. Court was given as to a fact which the jm*y were at liberty to believe from the evidence; namely, that the paper writing was in the possession, or under the control of, or suppressed by, the plaintiffs. If this was the fact, whether the defendants could avail themselves of it without giving notice to produce it, I will give no opinion. On the one side it is argued, that if they were possessed of it, or had it under their control, they were guilty of a fraud not to produce it; they knew, without notice being given them for that purpose, that it was their duty to produce it. On the other side it is argued, that a party shall not avail himself of a deed ór writing by proving its execution, unless he has used endeavors to procure it by demanding it of the party or giving notice to produce it. Thatthe reason why the production ofadeed is ever dispensed with is, because the party has no control over it. As far as this principle is involved in the present question, the inclination of my mind is with the plaintiff. But I give no opinion on that part of the case. For *374the reason I have first assigned, I think there should b« a new , .

Henderson, Judge,

disseniiente. — The paper which the defendants allege revoked the will in question, not belonging to them or being within their control, excuses them for its non production on the trial, for the law imposes on no one a thing beyond his power. If the paper is alleged to be in the possession of the adversary, notice must be given to him to produce it on the trial, before parol evidence shall be received of its contents; but if it is destroyed, no such notice is necessary. These preliminary facts to let in the secondary evidence, both as to their truth and sufficiency when shown, belong to the Court and not to the jury. See a very clear and able opinion on the latter question delivered by judge Spencer, in 16 Johns. 193. But neither of these questions arises in the present case. The defendant offers no secondary evidence; nor does he offer parol evidence of the contents of the paper. But the facts on which he relies are, that after the time of the execution of the will offered for probate, the testator, in the presence of two witnesses, acknowledged his signature to a writing, which he declared to be his will, and requested them to attest it as witnesses, which they did in his presence; that on the next day the paper was seen in the possession of a Miss Tillery, sister to Mrs. Eure, now the wife of the plaintiff Eure, and being then the wife of Crowell, the only son of the testator, and theprin-cipal legatee and devisee in the will offered for probate; and that the said Miss Tillery lived with and in the house of the son .of the said Crowell; that on the Wednesday thereafter, the testator committed suicide, and that the son on the same day, after hearing of the violence committed by the father on himself, also committed a similar act; that Miss Tillery had been summoned by. both parties, but was not present. From these facts the defendant insisted that Crowell had destroyed the latter *375writing, and that in odium spoliatoris, the jury should presume either that the writing contained a clause of revocation, or was inconsistent with the will offered. There was no parol evidence of the contents of the will by copy, nr other evidence of a like kind; nor was any argument drawn of its being a revocation, but from the fact of its. destruction by Crowell, or some one by his connivance or direction. With the fact of destruction the Court had no- . thing to do, nor with inferences to be drawn from it. They both belonged to the jury. They were not preliminary questions to the introduction of secondary evidence; for this reason, notice to produce the original was unnecessary. And here there was no inferior evidence offered; it was all primary; for every fact deposed to, went to the making and destruction of the paper. Whether they were sufficient to establish them, belonged to the jury. It is sufficient for us to see that the evidence was competent and relevant. And I think it was. As to the charge of the Court, I think it perfectly correct, if we strike out the word ought and insert the word may, for such was very evidently the judge’s meaning: for he says, you ought to find for defendant; for you may presume, if you think proper, that the latter will contained a clause of revocation, or was inconsistent with the first will in odium spo-liatoris; that is, if you should draw such a conclusion of facts, viz, that the last will contained a clause of revocation, or was inconsistent with the first will, which inference you may draw in odium spoliatoris; then you should find for the defendants, viz. that the last will revoked the'first. Which is a correct legal inference from the facts; that is, that if the last will contained a clause of revocation, or was inconsistent with the first will, (on which facts the jury were to pass,) then the conclusion of law was, that the will was revoked. I think the jury were properly instructed by the judge upon the point of sighing by some one for the testator, and in his presence and by his directions. This precaution is necessary only *376where there is no after recognition of the signature. "When the attestation is made by the. witnesses of its being the testator’s will in consequence of his directing some one to sign for him, and there is no after recognition of it and publication of the will, to prevent another paper being imposed upon the testator it must be signed by such persons in his presence. But where he, after the signing, acknowledges the signature and publishes it as his will, and then witnesses in his presence by his directions attest it. it is immaterial where it was signed: He. adopts the signature; and if the testator was of sound mind, there could be no imposition by establishing another paper for the genuine one. I think, therefore, that the rule for a hew trial should be discharged.