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Underhill on Torts. 'No person is legally responsible for any act or omission not attributable to active or passive volition on his part.' In other language, no person is responsible for an involuntary injury. If while following its owner along a highway, a dog discovers game and follows it, the owner is not liable. By the common law the owner of a dog that worried and killed sheep was not responsible for the damage done, and it required a statute in our State to create such liability. The reason of this rule was that the killing and worrying of sheep could not be anticipated or expected to result from a dog running at large. That rule applies here. The defendant could not know or believe that her dog would kill or injure the dog of this plaintiff, simply because she permitted her dog to follow her along the street." Chemot v. Larson, 43 Wis. 536; S. C., 28 Am. Rep. 567, and note, 569; Fallon v. O'Brien, 12 R. I. 518; S. C., 34 Am. Rep. 713; Saunders v. Teape, Q. B. Div., 29 A. L. J. 321.

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In People v. Dennin, 35 Hun, 327, the defendant and two ot men played ball on Sunday in private grounds with the consent of the owner thereof. They simply pitched the ball from one to another and made no noise. Held, that their playing was not prohibited by section 265 of the Penal Code, which provides that "all shooting, hunting, fishing, playing, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited." To constitute a violation of that section the playing" must seriously interrupt the repose of the community on Sunday. Barnard, P. J., said: “From the three sections it is manifest that the thing done must be a serious interruption of the repose of the community on Sunday. The thing prohibited must be to a greater or lesser extent public. The proof in the present case fails to make out an offense. The grounds were private. The defendant was not even a trespasser, as his entry thereon was by permission of the owner. There was no noise. There was no assembly of rsons beyond the three persons, and the offense was made up entirely by one person, the defendant, throwing the ball to another person to catch. If the third person was a party to the play of ball, throwing it would make no difference. The essential character of the crime was wanting. There was nothing done to disturb the repose of the community. That is in terms declared to be the object

of the law."

In Belford v. Canada Shipping Co., 35 Hun, 347, the plaintiff, a carpenter, was employed in erecting some cattle stalls on the upper or hurricane deck of a steamer belonging to the defendant. On stopping work in the evening he went with the assistant engineer to the deck below where his tools were placed by the engineer in the boiler to hide them over night. On returning to the vessel the next morning the plaintiff, while walking along the lower deck to get his tools, fell into a bunker hole

and sustained injuries. Held, that defendant was not liable. Pratt, J., said: "It was no part of the duty of the assistant engineer to assist the plaintiff in hiding his tools, or show him where to hide them for the night, therefore the plaintiff voluntarily and at his own risk went to a part of the vessel where no duty called him and where the defendant could not presume he would be likely to go. The plaintiff's work was upon the spar deck, and if he chose for his own purposes to go upon other parts of the vessel he went there upon his own risk. It would be a harsh and unreasonable rule to hold that if a person was employed to work upon a certain portion of a vessel, all other use of the remainder must be suspended in anticipation that the workman might travel to parts where no duty called him, and thereby receive some injury. So long as the master keeps the places where the workman is employed, or likely to go, in a safe condition, he discharges his whole duty in that regard. It has been held that the owner of a vessel is not bound to close the hatches at night so as to protect from

injury a trespasser, or one who has no right or license to be on the vessel. Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. Rep. 614; Zoebisch v. Tarbell, 10 Allen, 385. It cannot be said that the plainboiler, or that he went there in any connection with tiff was invited or licensed to go forward to the the work he was employed to do. I fail to see any negligence or breach of duty on the part of the defendant causing the injury to the plaintiff. The case must turn upon the single point whether there was either an expressed or implied invitation by the injured, and there being no conflict of evidence it defendant to the plaintiff to go where he was was a question of law for the trial judge to determine. To say that every portion of a vessel over 300 feet long must be guarded and kept safe, and may assume to leave his work and travel over because at a particular place a workman is employed the whole ship where no duty calls him is unreasonable." See note, 36 Am. Rep. 403; Wright v. Rawson, 52 Iowa, 329; S. C., 35 Am. Rep. 275; note, 40 Am. Rep. 327.



RULE. The risk of prosecution to avail the witness as an excuse for refusing to answer a question must be to himself (a), and must be a reasonable one in the ordinary course of justice (b).


A. being called on to give certain evidence declines, on the ground that it will subject B. and C. to penalties. This is no answer and A. must testify (1).

"The privilege is confined to penal consequences (1) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 329 (1851).

likely to be occasioned to the party himself; nemo some informality in the pardon. Is a witness justitenetur seipsum prodere; but there is no privilege | fied in refusing to answer on that account?" against disclosing matter within the knowledge of the party merely because it might subject other persons to punishment."



1. On a trial of B. for bribery, C. a witness is asked if he had received a bribe from B., C. refuses to answer, on the ground that it may criminate him. It is shown that C. has received a pardon from the Crown covering the matters inquired into. C. will be compelled to answer, although there is a possibility that the pardon may be informal or that he may be impeached by the House Commonspardons from the Crown not covering this (2).

In case 1 Cockburn, C. J., said: "We are of the opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things-not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called on to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence, within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the holding of evidence essential to the ends of justice. Now in the present case no one seriously supposes that the witness runs the slightest risk of an impeachment by the House of Commons. No instance of such a proceeding in the unhappily too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or so far as we are aware, has ever been thought of. To suppose that such a proceeding would be applied to the case of this witness would be simply ridiculous; more especially as the proceeding (in this case) was undertaken by the attorney general by the direction of the House itself, and it would therefore be contrary to all justice to treat the pardon provided in the interest of the prosecution, to insure the evidence of the witness as a nullity and to subject him to a proceeding by impeachment. It appears to us therefore that the witness in this case was not in a rational point of view, running the slightest real danger from the evidence he was called on to give when protected by the pardon from all legal proceedings; and that it was therefore the duty of the presiding judge to compel him to answer. And Crompton, J., asked: "There is always the remote possibility that there may be (2) R. v. Boyes, 1 B. & S. 311 (1881).

RULE. And the matter must be criminating and punishable in the country of the former and by its laws (a), unless it clearly appears from the evidence that such will be the effect likewise in a foreign state or country (b).


1. A witness, a foreigner, refuses to produce certain documents on the ground that they would expose him to prosecution in his own country. There is no proof as to what acts are penal in his country. The proof is not privileged (3).

In case 1 Lord Cranworth, after pointing out that as to the laws of the former the judge is able to determine whether or not the act which in the opinion of the witness is a crime, does or does not amount to a crime, said: "In respect of penal consequences in a foreign country, this cannot be. No judge can know, as matter of law, what would or would not be penal in a foreign country; and he cannot therefore form any judgment as to the force or truth of the objection of a witness, when he declines to answer on such a ground. In the present case indeed there will probably be no difficulty in believing that the defendants are speaking quite truly; as the documents may, in all probability, form links in a chain of evidence which might enable the courts in Sicily to convict the defendants of high treason. But if the principle is once admitted, it must be admitted in all its ramifications. Thus, for instance, in a bill against a firm, some of whom, though resident here, are Spanish subjects, with-seeking an account of mercantile transactions in Spain, the defendants might refuse to set out an account of these transactions, on account of the dealings having been (as probably they would have been) to a great extent, contraband, and so tending to subject them to penalties for having infringed the fiscal law of Spain. The case was put, at the bar, of a bill for an account of an opium transaction in China; and instances might be multiplied, to almost any extent, by ascertaining, as matter of fact, what acts, by the laws of any foreign country, are penal, though not so here, and which might become the subject of investigation in our courts. The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend, furnishes very strong, and to my mind, satisfactory evidence that the objection cannot be sustained. It is to be observed that in such a case, in order to make the disclosure danhe should first quit the protection of our laws, and gerous to the party who objects, it is essential that willfully go within the jurisdiction of the laws he has violated. Now in the present case, the parties objecting are Sicilian subjects; and so the probabil

(8) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301 (1851).

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ity of their returning to Sicily may be great. if the objection is once, in such a case, admitted, it is very difficult to say why it should not apply to an Englishman, who having been in a foreign country and there violated the law (by smuggling for instance) afterward returns home. He may intend to go abroad again, and then the discovery which he is here called on to make, might there subject him to penalties.


1. In a proceeding against a citizen of the United States residing in England by the government of the United States in the English courts, a witness is asked certain questions which he refuses to answer, on the ground that they will subject him to penalties in the United States. An act of Congress, prosecuting the penalties in such cases, is in evidence. The answer is privileged (4.)

In case 1 Lord Chancellor Chelmsford referring to case 1, illustration A, said: "I quite agree in the general principles stated of Lord Cranworth and in their application to the particular case before him. There was nothing on the face of the proceedings to inform the mind of the judge whether there was any, and if any, what foreign law applicable to the case, or whether the defendants had incurred any penalty or forfeiture by acting in this country as the agents of the, revolutionary government in Sicily. The only ground upon which the defendants objected to produce the documents in their possession was stated in their answer to be, that they believed and had been advised that the production of them would expose and render them subject to criminal prosecution, punishment and penalties in Sicily.' This did not furnish the least informa tion what the foreign law was upon the subject, though it was necessary for the judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not. Upon the particular circumstances of the case of King of the Two Sicilies v. Willcox (5) I have no doubt that it was most correctly decided. But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced, and he certainly could not have contemplated a case when the presumed ignorance of the judge as to foreign law is completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated, and where the plaintiffs calling for an answer are the sovereign power by

(4) United States of America v. McRae, L. R., 3 Ch. App. 79 (1887).

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

whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach. The case therefore stands thus: The United States, to whose existing law of forfeiture the defendant is said to have rendered himself amenable, are proceeding against him to obtain from him an account of moneys and goods which have come into his possession in the very character of agent to the Confederate States, by which his landed property in the United States has become liable to forfeiture. He cannot state any of the circumstances connected with his agency without his answer having a tendency to expose him to the forfeiture. It is a case entirely distinguishable from King of the Two Sicilies v. Willcox (6). There it was not shown that the defendants had rendered themselves liable to criminal prosecution. Here the plea alleges the particular ground of liability to forfeiture and that proceedings have actually been taken and are pending to enforce it. There it was doubtful whether the defendants would ever be within the reach of a prosecution, and their being so depended upon their voluntary return to their own country. Here the subject of forfeiture is within the power of the United States, and the proceedings against the defendant will be equally effectual whether he remains here or returns to the country where his property is situate. Under these peculiar circumstances I cannot distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law. The United States coming into our courts must be subject to every rule of evidence which prevails in them, and amongst others, to that which protects a witnes from exposing himself to penalties by his answer. And it appears to me that it would be most unjust not to extend this protection to a case where the party seeking the disclosure has the power to proceed for the forfeiture and the means of enforcing it." JOHN D. LAWSON.



Fa will, shown since to have existed, cannot be found after the death of the testator, the presumption is that he destroyed it animo revocandi, yet this presumption may be rebutted by evidence. 2 Greenl. Ev., § 688, and notes.

In Schultz v. Schultz, 35 N. Y. 653, it appeared that the will, at the time of its execution, was placed by the testator in the hands of a custodian, who took charge of it and locked it up in a trunk, and supposed it was there at the time of testator's death, but upon search it could not be found, held, the evidence of its legal existence at the time of testator's death was sufficient. If under such circumstances the will was not, in fact, in existence at the death of the testator. it is to be inferred that it was fraudulently destroyed or lost during his life-time, in which case it was his last will and testament. Id.

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

The presumption of revocation may be rebutted by the declarations of the testator, showing the continued existence of the will, down to near the time of his death. The New York cases, taken together, establish this proposition. The case principally relied on as holding the contrary is Jackson v. Betts, 6 Cow. 377. This case appears in another aspect as Dan v. Brown, in 4 Cow. 483. It also appears again in 9 Cow. 208, and in 6 Wend. 173. The probate of the same lost will, namely, the will of Benajah Brown is involved in all of these cases.

In Dan v. Brown, 4 Cow. 483, the first time this case was before the court, the declarations of the testator were admitted without objection. So that case cannot be considered an authority against the admissibility of such declarations. The next time the case appears is in 6 Cow. 377. Here the evidence of the testator's declarations was objected to and excluded. Judge Sutherland, writing the opinion of the Supreme Court, says: "The declarations of the testator during his last sickness, as to the existence of his will, and the place where it would be found, were incompetent evidence, and were properly rejected by the judge." He says this was so decided by the court in Dan v. Brown, 4 Cow. 483, but it will be seen on an examination of the latter case, that the evidence was admitted without objection. Judge Sutherland does not undertake to give any reason for excluding these declarations. He mply states the proposition dogmatically, without argument. A new trial was ordered, and the case came up again in 9 Cow. 208. Here no question as to the admissibility of the declarations seems to have been before the court. The case next appears in the Court of Errors (6 Wend. 173), on appeal from the decision reported in 9 Cow. 208. Chancellor Walworth writes the principal opinion in the Court of Errors, and very pointedly disapproves the decision excluding these declarations as laid down by Judge Sutherland in 6 Cow. 377. He says that the "uniform practice of the English testamentary courts has been to receive such declarations, to strengthen or repel the presumption that a will, once legally executed, but not found at the death of the testator, has been destroyed by him." The next case in which this question was discussed, is Grant v. Grant, 1 Sandf. Ch. 235. The statement of facts in this report is very meager, but from a remark in the opinion it would seem that evidence of declarations by the testator was admitted on the trial without objection. The declarations were not offered to prove a non-revocation of the will, but to prove its execution. This is evident from a remark of the court, who seems to think that the only object of the testimouy was to prove a valid execution. The declarations of the testator are certainly not competent, unsupported by other evidence, to prove that a will was duly executed. The court does not say that declaratious of the testator are not competent to rebut the presumption of revocation. On the contrary, the court says that such declarations would probably be admissible where the issue is upon the revocation of the will, and Betts v. Jackson, 6 Wend. 173, is cited as sustaining this view. So Grant v. Grant, taken as a whole, cannot be regarded as an authority against the admissibility of the testator's declarations. The next and last time this question seems to have been up in this State, was in Knapp v. Knapp, 10 N. Y. 276. In that case evidence of declarations by the testator, made a month before his death, as to the existence of his will, and as to where it might be found, was admitted without objection, and no question seems to have been raised by the counsel or any court, from the trial court to the Court of Appeals, as to the propriety or competency of the proof. This case must be taken as an authority in favor of the admissibility of the testator's declarations. The court held that the declarations

were too remote from the testator's death to rebut the presumption of revocation, but their admissibility was not questioned. The only New York case holding that this class of declarations is not admissible is Jackson v. Betts, Cow. 377, and that was expressly disapproved by Chancellor Walworth in 6 Wend. 173, and has been disregarded since.

Turning to other courts I find that such declarations are held proper in several States in the Supreme Court of the United States and in England.

Alabama. In McBeth v. McBeth, 11 Ala. 596, declarations of the testator as to the existence of his will, made shortly before his death, were held proper to rebut the presumption of revocation. One declaration was about three weeks, and another-to his attending physician-but six days before his death. He said to his physician that he was satisfied to die, so far as regarded his property, having disposed of it. The court held this to refer to a will. The court also say: "In our opinion the evidence satisfactorily establishes that during his last sickness, and immediately preceding his death, he supposed the will to be in existence, and relied upon it as a testamentary disposition of his property." "It is then very clear, that at the time he made the statement to the physician he supposed the will to be in existence, and this repels the presumption of a voluntary cancellation or destruction of it previous to that time." It appeared that the testator was physically incompetent to destroy the will during the last six days of his life. The same doctrine is held in Weeks v. McBeth, 14 Ala. 474. Connecticut. In the Matter of Johnson's Will, 40 Conu. 587, it was held that the declarations of a deceased person, to the effect that he was leaving a will, were admissible for the purpose of showing that a lost will had not been revoked.

Delaware. In Dawson v. Elizabeth Smith's Will, 3 Houston, 335, evidence of declarations of testatrix that she had a will was held proper to rebut the presumption of revocation. These declarations extended over a period of five or six years before the death of the testatrix.

Kentucky. In Steele v. Price, 5 B. Mon. 58, declarations of testator were admitted to rebut the presumption of revocation.

Massachusetts. In Davis v. Sigourney, 8 Meto. 487, the same class of declarations was held admissible.

Pennsylvania. In Boudinot v. Bradford, 2 Dall. 266 (decided in 1796), similar declarations were held admissible. In Youndt v. Youndt, 3 Graut, 140, conduct and declarations of the testator, up to near the day of his death, were admitted to rebut the presumption of revocation. In Jones v. Murphy, 8 W. & S. 275, declarations as to the existence of a will were held to be proper. Foster's Appeal, 87 Penn. St. 67, is the latest case in Pennsylvania that has come under my observation, which involves the question of the admissibility of this class of declarations. It is a strong and leading case in which the whole doctrine is discussed, and the admissibility of the testator's declarations, to rebut the presumption of revocation, firmly established on principle and authority. All the principal author. ities are collated and discussed, and the propriety of this class of evidence amply viudicated. In this case the deceased was known to have made several successive wills, and to have declared the necessity of having one in force at the time of his death. He spoke of the existence of one within two days of his death, at which time he was too feeble to leave his bed without assistance. He soon afterward became unconscious, and so remained until he died. No positive evidence of a revocation was produced. The court held that the presumption of a revocation was rebutted, and say that if a will has been executed and is not found upon the testator's death, the presumption is that he re

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voked it. This casts the burden upon the ponent of rebutting the presumption by sufficient evidence. This presumption may be rebutted by such evidence as produces a moral conviction to the contrary. The presumption of revocation is only prima facie. It is not a presumption of law, but one of fact, which like any other presumption may be rebutted.

pro-provisions are clearly and distinctly proved by at least two credible witnesses; a correct copy or draft being equivalent to one witness." Code, § 1865.

The Court of Appeals held in Harris v. Harris, 26 N. Y. 433, that the statutory provision, requiring two witnesses to establish a lost will, only relates to a special proceeding instituted for the express purpose of establishing the will, aud that it does not abolish the common-law rule of evidence which allowed the proof of a lost will, in the same manner as that of a deed, by a single credible witness. Accordingly where in an action of partition, the plaintiffs established their title by sufficient common-law evidence of the existence aud fraudulent destruction of a will, held, that they they were not concluded by the dismissal of a suit in which they had sought to obtain the probate and record of the will under the statute.

South Carolina. The same doctrine is laid down in Durant v. Ashmore, 2 Rich. 184, and in Legare v. Ashe, 1 Bay. 464.

Vermont. In Minkler v. Minkler, 14 Vt. 125, Redfield, J., holds the same view, and approves the suggestion of Chancellor Walworth in 6 Wend. 173.

United States Supreme Court. This court, in Gaines v. New Orleans, 6 Wall. 642-659, held that declarations by the testator as to testamentary intentions and as to the making of a will were proper.

England. In Goodtitle v. Otway, 2 H. Bl. 516 (1795), and cases cited, these declarations are held proper. So in Davis v. Davis,2 Addams, 226 (1824), declarations of the testator down to the very evening of his death were admitted to rebut the presumption of a revocation. In Patten v. Poulton, 1 S. & T. 55; 27 L. J. Prob. 41, it was held by Sir C. Cresswell, that the presumption that a will left in the keeping of the teatator, if it cannot be found at his death, has been destroyed by him animo revocatione, is a presumption of fact which prevails only in the absence of circumstances to rebut it, and that among such circumstances are declarations by the testator of good will toward the person benefited by it, adherence to the will as made, and the contents of the will itself. It is also said in this case that the strongest proof of adherence to the will, and of the improbability of its destruction, arises from the contents of the will itself. In Whitely v. King, 17 C. B. (N. S.) 756, in order to rebut the presumption arising from the absence of the will and codicil, that the testator had destroyed them, evidence was offered of repeated declarations made by the testator, down to a short time before his death, expressing his satisfaction at having settled his affairs, and telling one person that he had named him one of his excutors, and another that his will was at Sutcliffe's, an attor ney. The evidence was objected to, but admitted on the authority of Patten v. Poulton, supra. Erle, J., says: "Surely you may look at a man's words to see what his intentions are. The question here was whether the testator had the intention to destroy the will and codicil. Down to the last moment of his life almost, he is found declaring his satisfaction that he has settled his affairs." "Evidence tending to prove a contrary intention was admissible. For this purpose, the ordinary channels of information may be resorted to. The declaration of the testator are cogent evidence of his intentions. The repeated declarations of the testator, down to within a very few days of his death, were abundant evidence that the testator did not intend to cancel or destroy his will." Byles, J., says: "I see no reason why the declarations of the testator should not be admitted as part of his conduct to show his intentions as to the disposition of his property." Keating. J., says the rule admitting dec larations is "well established." See also Sugden v. St. Leonards, 34 L. T. (N. S.) 372. I have now quoted authorities in seven States, the Supreme Court of the United States, and the courts of England, all in favor of admitting declarations of the testator to rebut the presumption of revocation. The rule is so strongly fortified by the opinion of the ablest American and English courts, that its position must be deemed impreguable.

Admitting that the will is genuine, and was duly executed, and was legally in existence at the death of the testator, it cannot be established as a lost will unless "its

A "credible" witness is one who being competent to give evidence, is worthy of belief. 1 Bouvier Law Dict. 409, and it is added in a note that in deciding upon the credibility of a witness, it is always pertinent to consider whether he is capable of knowing thoroughly the thing about which he testifies; whether he was actually present at the transaction, whether he paid sufficient attention to qualify himself to be a reporter of it; and whether he honestly relates the affair fully as he knows it, without any purpose or desire to deceive, or to suppress or add to the truth.

The Code does not make it necessary that the witnesses who testify to the contents of the will should have read it. Nor does it prescribe how they shall acquire their knowledge of its contents. In some cases the declarations of the testator would be the best evidence, because the witness might not understand the terms which are used in a will. The Legislature evidently felt the difficulty of establishing the contents of lost wills, and so provided for the use, as evidence, of a copy of the will. The relief afforded by this liberal provision is often inadequate, for it very rarely occurs that a copy of a will is preserved. Wills are usually made in secret, and kept in a secret place. The witnesses who attest the will do not usually read it or know its contents. Generally the only persons who know the contents of a will are the testator and the draftsman, and it is not often that the latter person, especially if he is a lawyer and accustomed to draw wills frequently, remembers the contents. Then if there is no copy of the will, and no one has read or can remember its contents, how can its contents be proved? Unquestionably, the only way left is by the declarations of the testator as to its contents. Who can know, or who can be expected to remember, the contents of a will so well as the testator himself? It is his act; it disposes of his property; it is the subject of reflection and careful consideration before it is drawn, and he often thinks of it afterward. What better evidence can there be, in the absence of a copy of the instrument itself, than the declarations of the person whose property is to be disposed of by it? Can the testimony of two witnesses who have read the will be any stronger or more convincing than that of two persons who have heard the testator state its contents? They would be more likely to remember what the testator said than what they read. Conversation usually makes a stronger impression on the mind than reading, and the testimony of persons who have talked with the testator would probably be clearer and stronger than that of persons who had simply read the will, without discussing its contents. The courts have felt the difficulties of the situation, and have therefore in many cases admitted the declarations of the testator to aid in establishing the contents of the lost will. I have found no New York decision in which the question of the admissibility of these declarations is raised or discussed.

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