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Underhill on Torts, 'No person is legally respon- and sustained injuries. IIela, that defendant was sible for any act or omission not attributable to not liable. Pratt, J., said: “It was no part of the active or passive volition on his part. In other duty of the assistant engineer to assist the plaintiff language, no person is responsible for an involun- in hiding his tools, or show him where to hide them tary injury. If while following its owner along a for the night, therefore the plaintiff voluntarily and highway, a dog discovers game and follows it, the at his own risk went to a part of the vessel where owner is not liable. By the common law the owner no duty called him and where the defendant could of a dog that worried and killed sheep was not not presume he would be likely to go. The plainresponsible for the damage clone, and it required a tiff's work was upon the spar deck, and if he chose statute in our State to create such liability. The for his own purposes to go upon other parts of the reason of this rule was that the killing and worry vessel he went there upon his own risk. It would ing of sheep could not be anticipated or expected be a harsh and unreasonable rule to hold that if a to result from a dog running at large. That rule person was employed to work upon a certain porapplies here. The defendant could not know or tion of a vessel, all other use of the remainder believe that her dog would kill or injure the dog of must be suspended in anticipation that the workthis plaintiff, simply because she permitted her dog man might travel to parts where no duty called to follow her along the street.” Chemot v. Larson, him, and thereby receive some injury. So long as 43 Wis. 536; S. C., 28 Am. Rep. 567, and note, 569; the master keeps the places where the workman is Fullon v. O'Brien, 12 R. I. 518; S. C., 34 Am. Rep. cmployed, or likely to go, in a safe condition, he 713; Suunders v. Terpe, Q. B. Div., 29 A. L. J. 321. nischarges his whole duty in that regard. It has
been held that the owner of a vessel is not bound In People v. Dennin, 35 IIun, 327, the defendant injury a trespasser, or one who has no right or
to close the hatches at night so as to protect from and two other men played ball on Sunday in private License to be on the vessel. Sercry v. Vickerson, 120 grounds with the consent of the owner thereof. They simply pitched the ball from one to another well, 10 Allen, 385. It cannot be said that the plain
Mass. 306; S. C., 21 im. Rep. 614; Zoebisch v. Tarand made no noise. Hell, that their playing was
tiff was invited or licensed to go forward to the not prohibited by section 205 of the Penal Code, which provides that "all shooting, hunting, fishing,
boiler, or that he went there in any connection with
the work he was employed to do. I fail to sec playing,
upon the first day of the week, and all noise disturbing the peace of the day, are
any negligence or brcach of duty on the part of the
defendant causing the injury to the plaintiff. The prohibited.” To constitute a violation of that section the “playing" must seriously interrupt the
case must turn upon the single point whether there repose of the community on Sunday. Barnard, P.
was either an expressed or implied invitation by the J., said: “From the three sections it is manifestinjured, and there being no conflict of cvidence it
defendant to the plaintiff to go where he was that the thing done must be a serious interruption of the repose of the community on Sunday. The
was a question of law for the trial judge to deter
mine. To say that every portion of a vessel over thing prohibited must be to a greater or lesser extent public. The proof in the present case fails
300 feet long must be guarded and kept safe, to make out an offense. The grounds were private.
because at a particular place a workman is employed The defendant was not even a trespasser, as his
and my assume to leave his work and travel over entry thereon was by permission of the owner.
the whole ship where no cluty calls him is unreasonThere was
able." See note, 36 Am. Rep. 10:3; Wright v. Rarcno noise. There was no assembly of
son, 52 Iowa, 329; S. C., 35 Am. Rep. 275; note, persons beyond the three persons, and the offense
40 Am. Rep. 327. was made up entirely by one person, the defendant, throwing the ball to another person to catch. If
RULES AS TO THE PRIVILEGES OF MITthe third person was il party to the play of ball,
NESSES. throwing it would make no dillerence. The essen
VII. tial character of the crime was wanting. There was nothing done to disturl) the repose of the com
RULE. The risk of prosecution to arruil the ritness munity. That is in terms declared to be the object
als um erruse for refusing to an sier 11 question must be of the law."
to himself (a), au must be a reasonable one in the In Belford v. Cumaira Shipping Co., 3.5 IIun, 3:17, ordinary course o," justice (b). the plaintiff, a carpenter, was employed in erecting
ILLUSTRATIONS, some cattle stalls on the upper or hurricane deck of
(41.) a steamer belonging to the defendant. On stopping 1. being called on to give certain evidence dework in the evening he went with the assistant clines, on the ground that it will subject B. and C. engineer to the deck below where his tools were to penalties. This is no answer and A. must tesplaced by the engineer in the boiler to hide them tify (1). over night. On returning to the vessel the next " The privilege is contined to penal consequences morning the plaintiff, while walking along the
(1) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 329 lower deck to get his tools, fell into a bunker hole
likely to be occasioned to the party himself; nemo some informality in the pardon. Is a witness justitenetur scipsum prodere ; but there is no privilege fied in refusing to answer on that account?” against disclosing matter within the knowledge of
RULE. the party merely because it might subject other
And the matter must be criminating and persons to punishment.”
punishable in the country of the former and by its laus (B.)
(a), unless it clearly appears from the evidence that 1. On a trial of B. for bribery, C. a witness is
such will be the effect likewise in a foreign state or asked if he had received a bribe from B., C. refuses country (b).
ILLUSTRATIONS. to answer, on the ground that it may criminate him. It is shown that C. has received a pardon
(A.) from the Crown covering the matters inquired into. 1. A witness, a foreigner, refuses to produce cerC. will be compelled to answer, although there is a tain documents on the ground that they would expossibility that the pardon may be informal or that
pose him to prosecution in his own country. There he may be impeached by the House of Commons
is no proof as to what acts are penal in his country. pardons from the Crown not covering this (2). The proof is not privileged (3). In case 1 Cockburn, C. J., said: “We are of the
In case 1 Lord Cranworth, after pointing out that opinion that the danger to be apprehended must
as to the laws of the former the judge is able to be real and appreciable, with reference to the ordi
determine whether or not the act which in the nary operation of law in the ordinary course of opinion of the witness is a crime, does or does not things—not a danger of an imaginary and unsub
amount to a crime, said: “In respect of penal constantial character, having reference to some extra
sequences in a foreign country, this cannot be. No ordinary and barely possible contingency, so im- judge can know, as matter of law, what would or probable that no reasonable man would sut'er it to
would not be penal in a foreign country; and he influence his conduct. We think that a merely re cannot therefore form any judgment as to the force mote and naked possibility, out of the ordinary or truth of the objection of a witness, when he decourse of the law, and such as no reasonable man
clines to answer on such a ground. In the present would be affected by, should not be suffered to
case indeed there will probably be no difficulty in obstruct the administration of justice. The object believing that the defendants are speaking quite of the law is to afford to a party, called on to give truly; as the documents may, in all probability, evidence in a proceeding inter alios, protection form links in a chain of evidence which might against being brought by means of his own cvi
enable the courts in Sicily to convict the defendants dence, within the penalties of the law. But it
of high treason. But if the principle is once adwould be to convert a salutary protection into a mitted, it must be admitted in all its ramifications. means of abuse if it were to be held that a mere
Thus, for instance, in a bill against a firm, some of imaginary possibility of danger, however remote whom, though resident here, are Spanish subjects, and improbable, was sufficient to justify the with seeking an account of mercantile transactions in holding of evidence essential to the ends of justice. Spain, the defendants might refuse to set out an Now in the present case no one seriously supposes inccount of these transactions, on account of the that the witness runs the slightest risk of an im- vealings having been (as probably they would have peachment by the IIouse of Commons. No instance I been) to a great extent, contraband, and so tending of such a proceeding in the unhappily too numerous to subject them to penaltics for having infringed cases of bribery which have engaged the attention
the fiscal law of Spain. The case was put, at the of the House of Commons has ever occurrel, or so
bar, of a bill for an account of an opium transaction far as we are aware, has ever been thought of. To in China; and instances might be multiplied, to suppose that such a proceedling would be applied almost any extent, hy ascertaining, as matter of to the case of this witness would be simply ridicu- fact, what acts, by the laws of any foreign country, lous; more especially as the proceeding in this
are penal, though not so here, and which might case) was undertaken by the attorney general by become the subject of investigation in our courts. the direction of the JIouse itself, and it would
The impossibility of knowing, as matter of law, therefore be contrary to all justice to treat the par- to what cases the objection, when resting on the don provided in the interest of the prosecution, to
danger of incurring penal consequences in a foreign insure the evidence of the witness as a nullity and
country, may extend, furnishes very strong, and to to subject him to a proceeding by impeachment. It
my mind, satisfactory evidence that the objection appears to us therefore that the witness in this case
cannot be sustained. It is to be observed that in was not in a rational point of view, running the
such a case, in order to make the disclosure danslightest real danger from the evidence he was called on to give when protected by the parlon he should first quit the protection of our laws, and
gerous to thic party who objects, it is essential that from all legal proceedings; and that it was there willfully go within the jurisdiction of the laws he fore the duty of the presiding judge to compel him has violated. Now in the present case, the parties to answer. And Crompton, J., asked: “There is objecting are Sicilian subjects; and so the probabilalways the remote possibility that there may be
(3) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301 (2) R. v. Boyes, 1 B. & S. 311 (1861),
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. IIe may intend said to have rendered himself amenable, are proto go abroad again, and then the discovery which cceding 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 IIe cannot state any of the circumstances connected States residing in England by the government of with his agency without lus answer having a tenthe United States in the English courts, it witness dency to expose him to the forseiture.
It is a case is asked certain questions which he refuses to entirely distinguishable from King of the Troo Sicilics answer, on the ground that they will subject him to v. Willco.r (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. IIere the plea alleges the particuevidence. The answer is privileged (11.)
lar ground of liability to forfeiture and that proIn case 1 Lord Chancellor (helmsford referring ceedings have actually been taken and are pending to case 1, illustration 1, said: “I quite agree in the
to enforce it. There it was cloubtful whether the general principles state of Lord ('ranworth 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 haul incurred any
defendant will be equally essectual whether le 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 froin 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 cvidence which in Sicily.' This did not furnish the least informa 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 coulil sily 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 L’ing of the Tiro Sicilies v. Willcox (5) I
JOIN D. LAWSON. have no doubt that it was most correctly decideil. But in giving judgment Lord ('ranworth went be
LOST WILLS. yond the particular case, and expressed his opinion
II. that the rule upon which the defendants relied to protect them from answering was one which existed IF , merely by virtue of our own municipal law, and
found after the death of the testator, tho presumpwhich must have reference exclusively to matters
tion is that he destroyed it (mimo rerocandi, yet this
presumption may be rebutted by evidence. 2 Greenl. penal by that law. It was unnecessary to lay down
Er., $ 688, and notes. so broad a proposition to support the judgment In Schultz r. 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 ance of the judge as to foreign law is completely
it and locked it up in a trunk, and supposed it was
there at the time of testator's death, but upon search removed by the almitted statements upon the it could not be found, helil, the cridence of its legal pleadings, in which the exact nature of the penalty existence at tho time of testator's death was sufficient. or forfeiture incurred by the party objecting to
If under such circumstances the will was vot, in fact, answer is precisely stated, and where the plaintiff's
in existenco at the death of the testator. it is to be incalling for an answer are the sovereign power by
ferred that it was fraudulently destroyed or lost dur
ing his life-time, in which caso it was his last will and (4) United States of Imerica v. McRao, L. R., 3 Ch. App.
testament. Id. 79 (1867). (5) 1 Sim. (N. S.) 301.
(6) 1 Sim. (N. S,) 301.
The presumption of revocation may be robutted 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 existenco of the will, down to wear the time of his not questioned. The only New York case holding death. The New York cases, taken together, estab that this class of declarations is not admissible is lish this proposition. The case 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 in 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 in 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 threo weeks, and another-to his attending 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 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 bis will, and during his last sickness, and immediately preceding the place where it would be found, were incompetent his death, ho supposed the will to be in existence, and 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 tiou of the latter case, that the evidence 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. Fle 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 doctrine is held case came up again in 9 Cow. 208. Ilere no question in Weeks v. McBeth, 14 Ala. 474. as to the admissibility of the declarations seems to Connecticut. In the latter of Johnson's Will, 40 have been before the court. The cuse next appears in Comu. 587, it was held that the declarations of a detho (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. (hancellor 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 Dawson v. Elizabeth Smith's Will, 3 these declarations as laid down by Judge Sutherland Houston, 335, ovidence of declarations of testatrix in 6 ('ow. 377. IIe says that the “uniform practice of that she had a will was held proper to rebut the prethe English testamentary courts has been to receivo sumption of revocation. These declarations extended such declarations, to strengthen or repel the presump over a period of live 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 tions of testator were admitted to rebut the presumpGrunt v. Grant, 1 Sandf. Cb. 235. The statenient 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 tho 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 non-revocation of the will, but to prove its ex sible. In Youndt v. l'oundt, 3 Grant, 140, conduct and ecution. This is ovident 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 provo a valid execution. The declara- revocation. In Jones v. Murphy, 8 W. & S. 275, declations of the tostator are certainly not competent, we 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 exocuted. The court does not say that declara caso in Pennsylvania that has come under my observations of the testator aro not competent to rebut the tion, which involves the question of the admissibility presumption of revocation. On the contrary, the court of this class of declarations. It is a strong and leadsays that such declarations would probably be admis- ing caso in which tho whole doctrine is discussed, and sible whero the issue is upon the revocation of the the admissibility of the testator's declarations, to rewill, and Betis v. Jackson, 6 Wend. 17:3, is cited as sus but the presumption of revocation, firmly established taining this view. So Grunt v. Grunt,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 evidenco amply viudicated. In this case last time this question seems to have been up in this the deceased was known to havo made several succesState, was in Knapp v. Knapp), 10 N. Y. 276. In that sive wills, and to have declared the necessity of harcase evidence of declarations by the testator, mado a ing one in forco at the timo of his death. Ho spoke of month before his death, as to the oxistence 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 teucy of the proof. This case must be taken as an au the presumption of a revocation was robutted, and say thority in favor of the admissibility of the testator's that if a will has beon executed and is not found upon declarations. The court held that the declarations the testator's death, the presumptiou is that he re
voked it. This casts the burden upon the pro- provisions are clearly and distinctly proved by at least ponent of rebutting the presumption by Suli two credible witnesses; a correct copy or draft being cient evidence. This presumption may be rebut equivalent to one witness." ('ode, & 1865. tod by such evidence as produces a moral conviction The Court of Appeals held in Harris v. Harris, 26 to tho 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 ono of fact, wbich like any other presumption may be special proceeding instituted for the express purpose rebutted.
of establishing tho will, aud that it does not abolish South ('arolina. The samo doctrine is laid down in the common-law rule of evidence which allowed the Durant v. oshmore, 2 Rich. 181, and in Legare v. .Ishe, proof of a lost will, in tho sano manner as that of a 1 Bay. 464.
deed, by a single crediblo witness. Accordingly where Vermont. In dinliler v. linkler, 14 Vt. 125, Redfield, in an action of partition, the plaintiffs established their J., holds the samo view, and approves the suggestion title by sufliciont common-law evidence of the existof (hancellor Walworth in 6 Wend. 173.
ence and fraudulent destruction of a will, helil, that United States Supreme ('ourt. This court, in Guines they they were not concluded by the dismissal of a v. Vew Orleans, 6 Wall. 01:2-659, hell that declarations suit in which they had sought to obtain the probate by tho testator as to testamentary intentions and as to and record of tho will under the statute. the making of it will were proper.
A “credible" witness is one who being competent England. In Goodlille v. Oluy, II. 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 Daris v. Duris,i? Addams, 226 (1821), do 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 Pullen v. Poullon, 1 S. & T. 55; 27 actually present at the transaction, whether he paid L. J. Prob. 41, it was held by Sir ('. Cresswell, that tho sufficient attention to qualify himself to be a reporter presumption that a will left in the keeping of the tes of it; and whether ho 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 de. stroyed by him animo relocutione', is a presumption of ceive, or to suppress or add to the truth. fact which prevails only in the absence of circumstan Tho ('odo does not make it necessary that the witces to rebut it, and that among such circumstances nesses who testify to tho contents of the will should aro 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 somo mado, and the contents of the will itself. It also cases the declarations of the testator would be the bost said in this caso that the strongest proof of adherence evidence, becauso tho witness might not understand to tho will, and of the improbability of its destruction, the terms which are used in a will. The Legislaturo arises from the contents of the will itself. In Ihilily evidently felt tho difliculty of establishing the conv. King, 17 ('. B. (N. S.) 756, in order to rebut the pre tents of lost wills, and so provided for tho uso, as evisumption arising from the absence of tho will and cod dence, of a copy of tho will. The relief afforded by icil, that the testator hul destroyed them, ovidence 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. bis 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 Sutclifle's, an attore 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 l'utien v. Poulton, supru. 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 lestator had the intention to destroy the can remember its contents, how can its contents bo will and codicil. Down to the last moment of his life proved? Inqurstionably, the only way left is by tho almost, he is found declaring his satisfaction that he cleclarations of the testator as to its contents. Who has settled his aflair's." “Evidence tending to prove can know, or who can be expected to remember, tho a contrary intention was admissible. For this pur contents of a will so well as the testator himself? It pone', 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 cogent ject of reflection ard careful consideration before it is evidence of his 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 tho testator dici of the instrument itself, than the declarations of tho not intend to cancel or destroy his will." Byles, J., person whose property is to bo disposed of by it? (an says: “I see? 110 reason why the declarations of the the testimony of two witnesses who have read tho testator should not be admitted as part of his conduct will be any stronger or moro 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 rules admitting dec. tents? They would be more likely to remember what larations is "well established." See also suger v. St. the testator said than what they read. ('onversation Leonards, 31 L. T. (V. S.)372. I have now quoteil au usually makes a stronger impression on the mind than thorities in seven States, the Supreme ('ourt of the reading, and the testimony of persons who have talked L'nited States, and the courts of England, all in favor with the testator would probably bo clearer and of admitting declarations of tho testator to rebut the stronger than that of persons who had simply read tho presumption of revocation. The rule is so strongly will, without discussing its contents. The courts havo fortified by the opinion of the ablest American and felt the difliculties of the situation, and havo therefore English courts, that its position must be cleemod im in many cases admitted the declarations of the testapregnable.
tor to aid in establishing the contents of the lost will. dimitting that the will is genuine', amma was duly e't'e' I have found no New York decision in which the quescutell, unil vous legally in existence at the death of the tion of tho admissibility of these declarations is raised testutor, it cannot be estublished us ii lost will unless or discussed.