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ity of their returning to Sicily may be great. But whose authority and in whose name the proceedif the objection is once, in such a case, admitted, it ings for the forfeiture are instituted, and who have is very difficult to say why it should not apply to an the property to be forfeited within their reach. The Englishman, who having been in a foreign country case therefore stands thus: The United States, to and there violated the law (by smuggling for whose existing law of forfeiture the defendant is instance) afterward returns home. He may intend said to have rendered himself amenable, are proto go abroad again, and then the discovery which ceeding against him to obtain from him an account he is here called on to make, might there subject of moneys and goods which have come into his poshim to penalties.

session in the very character of agent to the ConILLUSTRATIONS.

federate States, by which his landed property in (B.)

the United States has become liable to forfeiture. 1. In a proceeding against a citizen of the United He cannot state any of the circumstances connected States residing in England by the government of with his agency without his answer having a tenthe United States in the English courts, a witness dency to expose him to the forfeiture. It is a case is asked certain questions which he refuses to entirely distinguishable from King of the Troo Sicilies answer, on the ground that they will subject him to v. Willcox (6). There it was not shown that the penalties in the United States. An act of Con

defendants had rendered themselves liable to crimigress, prosecuting the penalties in such cases, is in nal prosecution. Here the plea alleges the particucvidence. The answer is privileged (4.)

lar ground of liability to forfeiture and that proIn case 1 Lord Chancellor Chelmsford referring ceedings have actually been taken and are pending to case 1, illustration A, said: "I quite agree in the

to enforce it. There it was doubtful whether the general principles stated of Lord Cranworth and in defendants would ever be within the reach of a their application to the particular case before him. prosecution, and their being so depended upon their There was nothing on the face of the proceedings voluntary return to their own country. Here the to inform the mind of the judge whether there was

subject of forfeiture is within the power of the any, and if any, what foreign law applicable to the

United States, and the proceedings against the case, or whether the defendants had incurred

any

defendant will be equally effectual whether he penalty or forfeiture by acting in this country as

remains here or returns to the country where his the agents of the revolutionary government in property is situate. Under these peculiar circumSicily. The only ground upon which the defendants

stances I cannot distinguish the case in principle objected to produce the documents in their pos

from one where a witness is protected from answersession was stated in their answer to be, that they ing any question which has a tendency to expose believed and had been advised that the production him to forfeiture for a breach of our own municipal of them would expose and render them subject law. The United States coming into our courts to criminal prosecution, punishment and penalties must be subject to every rule of evidence which in Sicily.' This did not furnish the least informan prevails in them, and amongst others, to that tion what the foreign law was upon the subject, which protects a witnes from exposing himself to though it was necessary for the judge to know this penalties by his answer. And it appears to me that with certainty before he could say whether the acts

it would be most unjust not to extend this protecdone by the persons who objected to answer had tion to a case where the party seeking the disclosure rendered them amenable to punishment by that law

has the power to proceed for the forfeiture and the or not. Upon the particular circumstances of the means of enforcing it.” case of King of the Two Sicilies v. Willcox (5) I

JOHN D. LAWSON. have no doubt that it was most correctly decided. But in giving judgment Lord Cranworth went be

LOST WILLS.
yond the particular case, and expressed bis opinion

II.
that the rule upon which the defendants relied to
protect them from answering was one which existed IF

Fa will, shown since to have existed, cannot be

found after the death of the testator, the presumpmerely by virtue of our own municipal law, and

tion is that he destroyed it animo revocandi, yet this which must have reference exclusively to matters

presumption may be rebutted by evidence. 2 Greenl. penal by that law. It was unnecessary to lay down Ev., $ 688, and potes. 80 broad a proposition to support the judgment In Schultz v. Schultz, 35 N. Y. 653, it appeared that which he pronounced, and he certainly could not the will, at the time of its execution, was placed by the have contemplated a case when the presumed ignor- testator in the hands of a custodian, who took charge of

it and locked it up in a trunk, and supposed it was ance of the judge as to foreign law is completely

there at the time of testator's death, but upon search removed by the admitted statements upon the it could not be found, held, the evidence of its legal pleadings, in which the exact nature of the penalty existence at the time of testator's death was sufficient. or forfeiture incurred by the party objecting to

If under such circumstances the will was not, in fact,

in existence at the death of the testator. it is to be inanswer is precisely stated, and where the plaintiffs

ferred that it was fraudulently destroyed or lost durcalling for an answer are the sovereign power by ing his life-time, in which case it was his last will and (4) United States of America v. McRao, L. R., 3 Ch. App.

testament. Id. (5) 1 Sim. (N. S.) 301.

(6) 1 Sim. (N. 8,) 301,

79 (1867)

The presumption of revocatiou may be rebutted by were too remote from the testator's death to rebut the the declarations of the testator, showing the contin- presumption of revocation, but their admissibility was ued existence of the will, down to near the time of bis not questioned. The only New York case holding death. The New York cases, takeu together, estab- that this class of declarations is not admissible is lish this proposition. The caso principally relied on Jackson v. Betts, 6 Cow. 377, and that was expressly as holding the contrary is Jackson v. Betts, 6 Cow. 377. disapproved by Chancellor Walworth iu 6 Wend. 173, This case appears in another aspect as Dan v. Brown, and has been disregarded since. in 4 Cow. 483. It also appears again iu 9 Cow. 208, and Turning to other courts I find that such declarations in 6 Wend. 173. The probate of the same lost will, are held proper in several States in the Supreme Court namely, the will of Benajah Brown is involved in all of the United States and in England. of these cases.

Alabama. In McBeth v. McBeth, 11 Ala. 596, declarIu Dan v. Brown, 4 Cow. 483, the first time this case ations of the testator as to the existence of bis will, was before the court, the declarations of the testator made shortly before his death, were held proper to rewere admitted without objection. So that case can- but the presumption of revocation. One declaration not be considered an authority against the admissibil- was about three weeks, and another-to his atteuding ity of such declarations. The next time the case ap- physician--but six days before his death. He said to pears is in 6 Cow. 377. Here the evidence of the testa- his physician that he was satisfied to die, so far as retor's declarations was objected to and excluded. Judge garded his property, baving disposed of it. The court Sutherland, writing the opinion of the Supreme held this to refer to a will. The court also say: "In Court, says: “The declarations of the testator dur- our opinion the evidence satisfactorily establishes that ing his last sickness, as to the existence of his will, and during his last sickness, and immediately preceding the place where it would be found, were incompetent his death, he supposed the will to be in existence, aud evidence, and were properly rejected by the judge." relied upon it as a testamentary disposition of his He says this was so decided by the court in Dan v. property.” “It is then very clear, that at the time he Brown, 4 Cow. 483, but it will be seen on an examina- made the statement to the physician he supposed the tion of the latter case, that the evideuce was admitted will to be in existence, and this repels the presumpwithout objection. Judge Sutherland does not under-tion of a voluntary cancellation or destruction of it take to give any reason for excluding these declara- previous to that time.” It appeared that the testator tions. He simply states the proposition dogmatically, was physically incompetent to destroy the will during without argument. A new trial was ordered, and the the last six days of his life. The same dootrine is held case came up again in 9 Cow. 208. Here no question in Weeks v. McBeth, 14 Ala. 474. as to tho admissibility of the declarations seems to Connecticut. In the Matter of Johnson's Will, 40 have been before the court. The case next appears in Conn. 587, it was held the declarations of a dethe Court of Errors (6 Wend. 173), on appeal from the ceased person, to the effect that he was leaving a will, decision reported in 9 Cow. 208. Chancellor Walworth were admissible for the purpose of showing that a lost writes the principal opinion in the Court of Errors, will had not been revoked. and very pointedly disapproves the decision excluding Delaware. In Darson v. Elizabeth Smith's Will, 3 these declarations as laid down by Judge Sutherland Houston, 335, evidence of declarations of testatrix in 6 Cow. 377. He says that the “uniform practice of that she had a will was held proper to rebut the prethe English testamentary courts has been to receive sumption of revocation. These declarations extended such declarations, to strengthen or repel the presump- over a period of five or six years before the death of tion that a will,once legally executed, but not found at the testatrix. the death of the testator, has been destroyed by him." Kentucky. In Steele v. Price, 5 B. Mon. 58, declaraThe next case in which this question was discussed, is tious of testator were admitted to rebut the presumpGrant v. Grant, 1 Sandf. Ch. 235. The statement of tion of revocation. facts in this report is very meager, but from a remark Massachusetts. In Davis v. Sigourney, 8 Meto. 487, in the opinion it would seem that evidence of declara- the same class of declarations was held admissible. tions by the testator was admitted on the trial with: Pennsylvania. In Boudinot v. Bradford, 2 Dall. 266 out objection. The declarations were not offered to decided in 1796), similar declarations were held admisprove a uon-revocation of the will, but to prove its ex- sible. In Youndt v. Youndt, 3 Grant, 140, conduct and ecution. This is evident from a remark of the court, declarations of the testator, up to near the day of his who seems to think that the only object of the testi. death, were admitted to rebut the presumption of mony was to prove a valid execution. The declara- revocation. In Jones v. Murphy, 8 W. & S. 275, declations of the testator are certainly not competent, un- rations as to the existence of a will were held to be supported by other evidence, to prove that a will was proper. Foster's Appeal, 87 Penn. St. 67, is the latest duly executed. The court does not say that declara- case in Pennsylvania that has come under my observa. tions of the testator are not competent to rebut the tion, which involves the question of the admissibility presumption of revocation. Ou the contrary, the court of tbis class of declarations. It is a strong and leadsays that such declarations would probably be admis- ing case in which the whole doctrine is discussed, and sible where the issue is upon the revocation of the the admissibility of the testator's declarations, to rewill, and Betts v. Jackson, 6 Wend. 173, is cited as sus- but the presumption of revocation, firmly established taining this view. So Grant v. Grant, taken as a whole, on principle and authority. All the principal author cannot be regarded as an authority against the admis- ities are collated and discussed, and the propriety of sibility of the testator's declarations. The next and this class of evidence amply vindicated. In this case last time this question seems to have been up in this the deceased was known to have made several succesState, was in Knapp v. Knapp, 10 N. Y. 276. In that sive wills, and to have declared the necessity of bav. case evidence of declarations by the testator, made a ing one in force at the time of his death. He spoke of month before his death, as to the existence of his will, the existence of one within two days of his death, at and as to where it might be found, was admitted with- which time he was too feeble to leave his bed without out objection, and no question seems to have been assistance. He soon afterward became unconscious, raised by the counsel or any court, from the trial court and so remained until he died. No positive evidence to the Court of Appeals, as to the propriety or compe- of a revocation was produced. The court held that tency of the proof. This case must be taken as an au- the presumption of revocation was rebutted, and say thority in favor of the admissibility of the testator's that if a will has been executed and is not found upon declarations. The court held that the declarations the testator's death, the presumption is that he re

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voked it. This casts the burden upon the pro- provisions are clearly and distinctly proved by at least
ponent of rebutting the presumption by suffi- two credible witnesses; a correct copy or draft being
cient evidence. This presumption may be rebut- equivalent to one witness.” Code, $ 1865.
ted by such evidence as produces a moral conviction The Court of Appeals held in Harris v. Harris, 26
to the contrary. The presumption of revocation is N. Y. 433, that the statutory provision, requiring two
only prima facie. It is not a presumption of law, but witnesses to establish a lost will, only relates to a
one of fact, which like any other presumption may be special proceeding instituted for the express purpose
rebutted.

of establishing the will, and that it does not abolish South Carolina. The same doctrine is laid down in the common-law rule of evidence which allowed the Durant v. Ashmore, 2 Rich. 184, and in Legare v. Ashe, proof of a lost will, in the same manner as that of a 1 Bay. 464.

deed, by a single credible witness. Accordingly where Vermont. In Minkler v. Minkler, 14 Vt. 125, Redfield, in an action of partition, the plaintiffs established their J., holds the same view, and approves the suggestion title by sufficient common-law evidence of the existof Chancellor Walworth in 6 Wend. 173.

ence and fraudulent destruction of a will, held, that United States Supreme Court. This court, in Gaines they they were not concluded by the dismissal of a v. New Orleans, 6 Wall. 612-659, held that declarations suit in which they bad sought to obtain the probate by the testator as to testamentary intentions and as to and record of the will under the statute. the making of a will were proper.

A “credible" witness is one who being competent England. In Goodlitle v. Otway, 2 H. Bl. 516 to give evidence, is worthy of belief. 1 Bouvier Law (1795), and cases cited, these declarations are held Dict. 409, and it is added in a note that in deciding upon proper. So in Davis v. Davis,2 Addams, 226 (1824), de- the credibility of a witness, it is always pertinent to clarations of the testator down to the very evening of consider whether he is capable of knowing thoroughly his death were admitted to rebut the presumption of the thing about which he testifies; whether he was a revocation. In Pallen v. Poulton, 1 S. & T. 55; 27 actually present at the transaction, whether he paid L. J. Prob. 41, it was held by Sir C. Cresswell, that the sufficient attention to qualify himself to be a reporter presumption that a will left in the keeping of the tez- of it; and whether he honestly relates the affair fully tator, if it cannot be found at his death, has been de- as he knows it, without any purpose or desire to destroyed by him animo revocatione, is a presumption of ceive, or to suppress or add to the truth. fact which prevails only in the absence of circumstan- The Code does not make it necessary that the witces to rebut it, and that among such circumstances nesses who testify to the contents of the will should are declarations by the testator of good will toward have read it. Nor does it prescribe how they shall the person benefited by it, adherence to the will as acquire their knowledge of its contents. In some made, aud the contents of the will itself. It is also cases the declarations of the testator would be the best said in this case that the strongest proof of adherence evidence, because the witness might not understand to the will, and of the improbability of its destruction, the terms which are used in a will. The Legislature arises from the contents of the will itself. In Whitely evidently felt the difficulty of establishing the conv. King, 17 C. B. (N. S.) 756, in order to rebut the pre- tents of lost wills, and so provided for the use, as evisumption arising from the absence of the will and cod- deuce, of a copy of the will. The relief afforded by icil, that the testator had destroyed them, evidence this liberal provision is often inadequate, for it very was offered of repeated declarations made by the tes- rarely occurs that a copy of a will is preserved. Wills tator, down to a short time before his death, expressing are usually made in secret, and kept in a secret place. his satisfaction at having settled his affairs, and telling The witnesses who attest the will do not usually read one person that he had named him one of his excutors, it or know its contents. Generally the only persons and another that his will was at Sutcliffe's, an attor- who know the contents of a will are the testator and ney. The evidence was objected to, but admitted on the draftsman, and it is not often that the latter perthe authority of Patten v. Poulton, supra. Erle, J., son, especially if he is a lawyer and accustomed to says: “Surely you may look at a man's words to see draw wills frequently, remembers the contents. Then what his intentions are. The question here was if there is no copy of the will, and no one has read or whether the testator had the intention to destroy the can remember its contents, how can its contents be will and codicil. Down to the last moment of his life proved? Unquestionably, the only way left is by the almost, he is found declaring his satisfaction that he declarations of the testator as to its coutents. Who has settled his affairs.” “Evidence tending to prove can know, or who can be expected to remember, the a contrary intention was admissible. For this pur- contents of a will so well as the testator himself? It pose, the ordinary channels of information may be re- is his act; it disposes of his property; it is the subsorted to. The declaration of the testator are cogentject of reflection ard careful consideration before it is evidence of bis intentions. The repeated declarations drawn, and he often thinks of it afterward. What of the testator, down to within a very few days of his better evidence can there be, in the absence of a copy death, were abundant evidence that the testator did of the instrument itself, than the declarations of the not intend to cancel or destroy his will." Byles, J., person whose property is to be disposed of by it? Can says: “I see no reason why the declarations of the the testimony of two witnesses who have read the testator should not be admitted as part of his conduct will be any stronger or more convincing than that of to show his intentions as to the disposition of his two persons who have heard the testator state its conproperty." Keating, J., says the rule admitting dec. tents? They would be more likely to remember what larations is “ well established.” See also Sugden v. St. the testator said than what they read. Conversation Leonards, 34 L. T. (V. S.) 372. I have now quoted au- usually makes a stronger impression on the mind than thorities in seven States, the Supreme Court of the reading, and the testimony of persons who have talked United States, and the courts of England, all in favor with the testator would probably be clearer and of admitting declarations of the testator to rebut the stronger than that of persons who had simply read the presumption of revocation. The rule is so strongly will, without discussing its contents. The courts hayo fortified by the opinion of the ablest American and felt the difficulties of the situation, and have therefore English courts, that its position must be deemed im- in many cases admitted the declarations of the testapreguable.

tor to aid in establishing the contents of the lost will. Admitting that the will is genuine, and was duly exe- I have found no New York decision in which the quescuted, and was legally in existence at the death of the tion of the admissibility of these declarations is raised testator, it cannot be established as a lost will unless or discussed.

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In Knapp v. Knapp, 10 N. Y. 276, evidence of such evidence. Thus they have been admitted as in Doe v. declarations was admitted without objection. So far | Palmer, 16 Q. B. 747, to vegative the presumption arisas this case can be regarded as an authority, it is in ing from interlineations having been made subsefavor of admitting this class of declaratious. It is held quently to the execution of the will. Iu like manner in Connecticut that the contents of a lost will may be the declarations of a testator have been admitted to proved by parol. Matter of Johnson's Will, 40 Conn. show the continuing existence of the will at the time 587. In Pennsylvania the declarations of the testator they were made, and so to rubut the presumption of as to the conteats of his will are admitted in evidence the will having been destroyed animo revocandi." Jones v. Murphy, 8 W. & S. 275. So in Massachusetts, "The question before us is whether the statements Davis v. Sigourney, 8 Meto. 487, followed in 120 Mass. made by a testator as to the provisions of his will can 277. So in South Carolina contents may be proved by l be received as evidence of the contents of a will known parol. Legare v. Ashe, 1 Bay, 464. So in Missouri, to have existed, but which at his death is no longer Dickey v. Malechi, 6 Mo. 177. So in the United States forthcoming. That morally such statements and decSupreme Court Gaines v. New Orleans, 6 Wall. 642. larations are entitled, where no doubt exists of their So in Eugland see the leading case of Sugden v. St. sincerity, to the greatest weight, cannot be denied, and Leonards, 34 L. T. (N. 8.) 372, also in full, Law Rep. I am at a loss to see why, when such evidence is held Prob. Div. 1875–6, 154, cited in 2 Greenl. Ev., $ 688 a, to be admissible for the two purposes just referred to, note 3.

it should not be equally receivable as proving the conIn this case the testator had executed a will with tents of the will. If the exception to the general rule several (7) codicils. These papers were locked up by of law whioh excludes bearsay evidence is admitted on him in a box which was kept in his daughter's room, account of the exceptional position of a testator, for be retaining the key. After his death tho will was not one purpose, why should it not be for another, where found in the box, but several codicils were found there. there is an equal degree of knowledge, and an equal His daughter, who had acted as his amanuensis, and absence of motive to speak untruly?" "I entertain who had been in his confidence in his business trans- no doubt that prior instructions, or a draft authentiactions, and who had read the will several times, wrote cated by the testator, or verbal declarations of what out the contents of the will from memory, and with he was about to do, though of course not conclusive out cousulting any doouments, and the correctness of evidence, are yet legally admissible as secondary eviher memory was attested by the codicils and other dence of the contents of a lost will." "The question papers in the handwriting of the deceased found in the here is simply one as to the admissibility of secondary box. There was evidence that the testator had made evidence, and has to be determined by the rules of evideclarations of his testamentary intentions within a dence alone. I am decidedly of the opinion that all few months of his death, which were in accordance statements or declarations, written or oral, made by a with the alleged contents of the will, and that he en- testator prior to the execution of his will, are admissijoyed all his mental faculties until his death. The ble as evidence of its contents." writing made by the daughter was admitted as the “There can be no difference in principle as to the will of the deceased. There was also evidence of deo- admissibility of declarations made subsequently to the larations made by the testator as to the contents of his execution of the will. The position of the testator is will, made after the will was executed, and at various the same, as respects both peculiar knowledge and motimes and to different persons, up to the time of his tive for speaking the truth. In the case of its loss, bis death. The following propositions, among others, statements afford morally the best evidence of its cou. were decided :

tents. Yet we are asked to exclude their operation as 1. The contents of a lost will, like that of any showing the contents, though it is ackuowledged that other lost instrument, may be proved by secondary such evidence is available to rebut the presumption of evidence.

revocation and to establish what is called adherence to 2. Declarations witten or oral made by a testator, the will. The adoption of such a rule would moreover both before and after the execution of his will, are in lead to a very strange anomaly. The great majority the event of its loss admissible as secondary evidence of statements made by a testator for the purpose of of its contents.

proving adherence are in fact statements as to the On the subject of the admissibility of the declara-contents of the will. But such statements of the contions of testator, Lord Chief Justice Cockburn, intents of the will, assumed to be truthful, having been his opinion, says (p. 224 et seq.): "The question is admitted and acted upon for the purpose of showing whether the declarations of the testator can be re- that so far as the testator was concerned the will was ceived as secondary evidence of the contents of the still alive, how is it possible to shut out the evidence lost will. No doubt, generally speaking, where second-where the contents come directly in question? It apary evidence is admissible, if oral, it must be given on pears to me, that if as an exception to the general rule, oath, if documentary, it must be verified on oath; the evidence is admissible for one purpose, it must be nevertheless the declarations of deceased persons are equally so for the other. How can we use evidence of in several instances admitted as exceptions to the the contents of a will for an ulterior purpose, and shut general rule, where such persons have had peculiar out the same evidence when the contents of the will means of knowledge, and may be supposed to be with- are themselves immediately in question?" "I am out motive to speak otherwise than according to the therefore of the opinion that the various statements of truth. It is obvious that a man who has made his will Lord St. Leonards, whether before or after the stands pre-eminently in that position. He must be execution of his will, are admissible to prove its contaken to know the contents of the instrument he has tents." executed. If he speaks of its provisions, he can have Iu Morris v. Swaney, 7 Heisk. (Tenn.) 591 (1872), a no motive in misrepresenting them, except in the rare lost will was established upon secondary evidence instances in which a testator may have the intention alone. The will was alleged to have been made in 1845. of misleading by his statements respecting his will. Both the alleged subscribing witnesses were dead. No Generally speaking, statements of this kind are hon- copy of the will was produced. No witness was sworn estly made, and this class of evidence may be put on who ever read the will. The proof of the contents of the same footing as declarations of members of a fam- the will rested alone upon the testimony of witvesses ily in matters of pedigree.” “It is upon this princi- who repeated its contents from having heard it read ple, I presume, that the declarations of a deceased tes- by others, the witnesses themselves being illiterate. tator have in more than one instance been admitted in This proof was corroborated by the declarations of the

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testator and other ciroumstances. The chancellor Also held, that knowledge of the removal by the company was
charged the jury that the complainants were required not a waiver of the policy as to location, nor was the com-
to establish their case by the best evidence in exist- pany called upon to cancel the policy in view of such
ence; that however the law did not require an impos- knowledge to avoid liability.
sibility, and that if the will was lost, and the subscrib-

Tarsney & Meadock, for plaintiff and appellant. ing witnesses dead, the will might be proven by such

Hanchett & Stark, for defendant. evidence as would clearly and fully satisfy their minds of its execution and of its contents. The jury ren- COOLEY, C. J. Defendant in January, 1883, issued dered a verdict for the complainant establishing the to plaintiff a polioy whereby he was insured to the will, and the verdict was sustained on appeal, the court amount of $2,000 on his household goods, furniture, holding that the testimony as to the contents of the clothing, etc., "all contained in his two-story frame will was proper.

dwelling-house and additions, occupied as a resiThe admissibility of this class of declarations must dence,” in Saginaw city, and to the further amount of now be considered to be established by the highest $300 on his horse, buggies, hay, etc., and barn tools. authority, and it is founded on sound reason.

A fire occurred November 13, 1883, which so far inIn proving the contents of a will, the gradations in jured the house so as to render it uninhabitable. At the evidence may be stated as follows:

the time of this fire much of the household goods cov1. The best evidence is the original will itself.

ered by the policy was removed to the barn and stored 2. In case of its loss, an authenticated copy is the best there. The parties adjusted the loss by this fire, and evidence.

no question now arises upon it. December 6, 1883, the 3. Witnesses may have read the original.

barn was burned, and with it the household goods 4. Witnesses may have heard it read.

stored in it. Defendant adjusted and paid the loss by 5. The testator may have made declarations as to its this fire so far as concerned the property commonly contents.

kept in a barn, but refused to pay any loss on houseEither of these methods is competent, according hold goods. For that loss this suit is instituted. The to circumstances, to establish the contents of a Circuit judge held there could be no recovery, and dewill.

fendant had judgment. It is claimed for the plaintiff The provisions of the Code (see 1865), which require that the barn in this case may be considered a part of that the contents of a lost or destroyed will must be the dwelling-house, it being within the curtilage. But clearly and distinctly proved by at least two credible there is no ground for this claim. This is a case of conwitnesses before it can be admitted to probate, must tract, and the question is what contract the parties be construed liberally in the furtherance of justice, have made. For some purposes the law regards a barn and for the prevention of fraud; and the spirit of the within the curtilage as part of the dwelling-house; Code is complied with by holding that it applies ouly but it is not popularly so regarded, and it must be very to those provisions of the will which affect the disposi- rare indeed that in a contract it is treated as such. It tion of thes testator's property, and which are of the certainly was not so treated in this case. There were substance of the will. Early v. Early, 5 Redf. S. 376; two classes of insured property; and the class to which Hook v. Pratt, 8 Hun, 102-9. But a lost or destroyed the goods in question belonged was insured as situated will cannot be established on the testimony of two

in a described building, which the policy designates as witnesses, if they differ materially either as to the

the dwelling-house; and the description makes it very beneficiaries or the amount of the bequests. Sheridan clear that no other building was understood to be inv. Houghton, 6 Abb. N. C. 234. So in McNally v. cluded. The parties certainly did not understand that Brown, 5 Redf. 372, where from all the evidence the in insuring the household goods, etc., in the dwellingcourt could only surmise the probable effect of the house, and also horse, buggies, etc., and barn tools, will, no two witnesses pretending to give the whole,

that the horse, buggies and barn tools were in the probate was refused.

dwelling-house. But one of the conditions of the To warrant giving parol evidence of a will not shown policy would make the meaning very plain if it could to be destroyed, it must be first proved that diligent otherwise bave been considered in doubt. The assured search has been made, by or at the request of the party is required to “state on oath in his proofs of loss, that interested, at the place where it is most likely it would all the merchandise and personal property for which be found; as among the papers of the devisor at his claim is made was at the time of the fire contained in residence, if the will do not appear to have been de- the building on premises described in said polioy." posited in any public office. The search may be proved It was plainly impossible for this plaintiff to state in by a party in the cause, who made the search, though his proofs of loss that the property for the burning of he be interested, as it is merely addressed to the court, which he now claims was in “his two-story frame in order to let in secondary proof. Dun v. Brown, 4 dwelling-house and additions, occupied as a resiCow. 483.

dence," for it was in a very different building. CHARLES Z. LINCOLN. A further claim is that defendant, knowing that

these goods were stored in the barn, and not making

any objection thereto, or cancelling the policy on that INSURANCE— CONTAINED INKNOWLEDGE when the loss has occurred. But this is not a case of

account, has waived the right to take the objection -- WAIVER.

objection and not a question of waiver. The question

is, for what loss this defendant has undertaken to be MICHIGAN SUPREME COURT, NOVEMBER, 1884.

responsible. Now we find the contract to be that defendant will be responsible for

the ENGLISH V. FRANKLIN FIRE INS. Co.

fire of these goods while they remain in the dwellingA fire policy insured household goods, furniture, clothing, house, but not when out of it. But the defendant

etc., "all contained in his two-story frame dwelling-house, could not insist that the goods should remain in the etc.," and also in another clause his horse, buggies, hay, dwelling-house. Plaintiff might remove them at will etc. Much of the household goods was afterward removed and for any reason that might incline him to do so; to the barn and stored there at the time of the fire on ac- and this being his undoubted right, there would be count of a previous fire which rendered the house unin- nothing for defendant to waive in respect to it. habitable. Held, that the policy did not cover the house- Waiver implies a right to object to what is being done, hold furniture while in the barn.

but there was no such right here. The defendant merely

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