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 negative 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 declarations. It is held quently to the execution of the will. In 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 rebut the presumption of as to the contents 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 Metc. 487, followed iu 120 Mass. made by a testator as to the provisions of his will can 277. So in South Carolina contents may be proved by 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 England see the leading case of Sugden v. St. sincerity, to the greatest weight, cannot be denied,and Leonards, 34 L. T. (N. S.) 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 contents of the will. If the exception to the general rule of law which excludes hearsay evidence is admitted on account of the exceptional position of a testator, for one purpose, why should it not be for another, where there is an equal degree of knowledge, and an equal absence of motive to speak untruly?" "I entertain no doubt that prior instructions, or a draft authenticated by the testator, or verbal declarations of what he was about to do, though of course not conclusive evidence, are yet legally admissible as secondary evidence of the contents of a lost will." "The question here is simply one as to the admissibility of secondary evidence, and has to be determined by the rules of evidence alone. I am decidedly of the opinion that all statements or declarations, written or oral, made by a testator prior to the execution of his will, are admissible as evidence of its contents.'

In this case the testator had executed a will with several (7) codicils. These papers were locked up by him in a box which was kept in his daughter's room, he retaining the key. After his death the will was not found in the box, but several codicils were found there. His daughter, who had acted as his amanuensis, aud who had been in his confidence in his business transactions, and who had read the will several times, wrote out the contents of the will from memory, and without consulting any documents, and the correctness of her memory was attested by the codicils and other papers in the handwriting of the deceased found in the box. There was evidence that the testator had made declarations of his testamentary intentions within a few months of his death, which were in accordance with the alleged contents of the will, and that he enjoyed all his mental faculties until his death. The writing made by the daughter was admitted as the will of the deceased. There was also evidence of declarations made by the testator as to the contents of his will, made after the will was executed, and at various times and to different persons, up to the time of his death. The following propositions, among others, were decided:

1. The contents of a lost will, like that of any other lost instrument, may be proved by secondary evidence.

2. Declarations witten or oral made by a testator, both before and after the execution of his will, are in the event of its loss admissible as secondary evidence of its contents.

On the subject of the admissibility of the declarations of testator, Lord Chief Justice Cockburn, in his opinion, says (p. 224 et seq.): "The question is whether the declarations of the testator can be received as secondary evidence of the contents of the lost will. No doubt, generally speaking, where secondary evidence is admissible, if oral, it must be given on oath, if documentary, it must be verified on oath; nevertheless the declarations of deceased persons are in several instances admitted as exceptions to the general rule, where such persons have had peculiar means of knowledge, and may be supposed to be without motive to speak otherwise than according to the truth. It is obvious that a man who has made his will stands pre-eminently in that position. He must be taken to know the contents of the instrument he has executed. If he speaks of its provisions, he can have no motive in misrepresenting them, except in the rare instances in which a testator may have the intention of misleading by his statements respecting his will. Generally speaking, statements of this kind are honestly made, and this class of evidence may be put on the same footing as declarations of members of a family in matters of pedigree." "It is upon this principle, I presume, that the declarations of a deceased testator have in more than one instance been admitted in

"There can be no difference in principle as to the admissibility of declarations made subsequently to the execution of the will. The position of the testator is the same, as respects both peculiar knowledge and motive for speaking the truth. In the case of its loss, his statements afford morally the best evidence of its coutents. Yet we are asked to exclude their operation as showing the contents, though it is acknowledged that such evidence is available to rebut the presumption of revocation and to establish what is called adherence to the will. The adoption of such a rule would moreover lead to a very strange anomaly. The great majority of statements made by a testator for the purpose of proving adherence are in fact statements as to the contents of the will. But such statements of the contents of the will, assumed to be truthful, having been admitted and acted upon for the purpose of showing that so far as the testator was concerned the will was still alive, how is it possible to shut out the evidence where the contents come directly in question? It appears to me, that if as an exception to the general rule, the evidence is admissible for one purpose, it must be equally so for the other. How can we use evidence of the contents of a will for an ulterior purpose, and shut out the same evidence when the contents of the will are themselves immediately in question?" "I am therefore of the opinion that the various statements of Lord St. Leonards, whether before or after the execution of his will, are admissible to prove its contents."

In Morris v. Swaney, 7 Heisk. (Tenn.) 591 (1872), a lost will was established upon secondary evidence alone. The will was alleged to have been made in 1845. Both the alleged subscribing witnesses were dead. No copy of the will was produced. No witness was sworn who ever read the will. The proof of the contents of the will rested alone upon the testimony of witnesses who repeated its contents from having heard it read by others, the witnesses themselves being illiterate. This proof was corroborated by the declarations of the

testator and other circumstances. The chancellor
charged the jury that the complainants were required
to establish their case by the best evidence in exist-
ence; that however the law did not require an impos-
sibility, and that if the will was lost, and the subscrib-
ing witnesses dead, the will might be proven by such
evidence as would clearly and fully satisfy their minds
of its execution and of its contents. The jury ren-
dered a verdict for the complainant establishing the
will, and the verdict was sustained on appeal, the court
holding that the testimony as to the contents of the
will was proper.

The admissibility of this class of declarations must
now be considered to be established by the highest
authority, and it is founded on sound reason.

In proving the contents of a will, the gradations
the evidence may be stated as follows:

1. The best evidence is the original will itself.
2. In case of its loss, an authenticated copy is the best
evidence.

3. Witnesses may have read the original.
4. Witnesses may have heard it read.

5. The testator may have made declarations as to its
contents.

Either of these methods is competent, according to circumstances, to establish the contents of a will.

Also held, that knowledge of the removal by the company was
not a waiver of the policy as to location, nor was the com-
pany called upon to cancel the policy in view of such
knowledge to avoid liability.

Tarsney & Meadock, for plaintiff and appellant.
Hanchett & Stark, for defendant.

COOLEY, C. J. Defendant in January, 1883, issued
to plaintiff a policy whereby he was insured to the
amount of $2,000 on his household goods, furniture,
clothing, etc., “all contained in his two-story frame
dwelling-house and additions, occupied as a resi-
dence," in Saginaw city, and to the further amount of
$300 on his horse, buggies, hay, etc., and barn tools.
A fire occurred November 13, 1883, which so far in-
injured the house so as to render it uninhabitable. At
the time of this fire much of the household goods cov-
ered by the policy was removed to the barn and stored
there. The parties adjusted the loss by this fire, aud
no question now arises upon it. December 6, 1883, the
barn was burned, and with it the household goods
stored in it. Defendant adjusted and paid the loss by
this fire so far as concerned the property commonly
kept in a barn, but refused to pay any loss on house-
hold goods. For that loss this suit is instituted. The
Circuit judge held there could be no recovery, and de-
fendant had judgment. It is claimed for the plaintiff
that the barn in this case may be considered a part of
the dwelling-house, it being within the curtilage. But
there is no ground for this claim. This is a case of con-
tract, and the question is what contract the parties
have made. For some purposes the law regards a barn
within the ourtilage as part of the dwelling-house;
but it is not popularly so regarded, and it must be very
rare indeed that in a contract it is treated as such. It
certainly was not so treated in this case.
There were
two classes of insured property; and the class to which
the goods in question belonged was insured as situated
in a described building, which the policy designates as
the dwelling-house; and the description makes it very
clear that no other building was understood to be in-
cluded. The parties certainly did not understand that
in insuring the household goods, etc., in the dwelling-
house, and also horse, buggies, etc., and barn tools,
that the horse, buggies and barn tools were in the
dwelling-house. But one of the conditions of the
policy would make the meaning very plain if it could
otherwise have been considered in doubt. The assured
is required to "state on oath in his proofs of loss, that
all the merchandise and personal property for which
claim is made was at the time of the fire contained in
the building on premises described in said policy."
It was plainly impossible for this plaintiff to state in
his proofs of loss that the property for the burning of
which he now claims was in "his two-story frame
dwelling-house and additions, occupied as a resi-
dence," for it was in a very different building.

The provisions of the Code (see 1865), which require that the contents of a lost or destroyed will must be clearly and distinctly proved by at least two credible witnesses before it can be admitted to probate, must be construed liberally in the furtherance of justice, and for the prevention of fraud; and the spirit of the Code is complied with by holding that it applies only to those provisions of the will which affect the disposition of thes testator's property, and which are of the substance of the will. Early v. Early, 5 Redf. S. 376; Hook v. Pratt, 8 Hun, 102-9. But a lost or destroyed will cannot be established on the testimony of two witnesses, if they differ materially either as to the beneficiaries or the amount of the bequests. Sheridan v. Houghton, 6 Abb. N. C. 234. So in McNally v. Brown, 5 Redf. 372, where from all the evidence the court could only surmise the probable effect of the will, no two witnesses pretending to give the whole, probate was refused.

To warrant giving parol evidence of a will not shown to be destroyed, it must be first proved that diligent search has been made, by or at the request of the party interested, at the place where it is most likely it would be found; as among the papers of the devisor at his residence, if the will do not appear to have been deposited in any public office. The search may be proved by a party in the cause, who made the search, though he be interested, as it is merely addressed to the court, in order to let in secondary proof. Dan v. Brown, 4 Cow. 483.

CHARLES Z. LINCOLN.

ENGLISH V. FRANKLIN FIRE INS. Co.

A fire policy insured household goods, furniture, clothing,
etc., “all contained in his two-story frame dwelling-house,
etc.," and also in another clause his horse, buggies, hay,
etc. Much of the household goods was afterward removed
to the barn and stored there at the time of the fire on ac-
count of a previous fire which rendered the house unin-
habitable. Held, that the policy did not cover the house-
hold furniture while in the barn.

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 account, has waived the right to take the objection when the loss has occurred. But this is not a case of objection and not a question of waiver. The question is, for what loss this defendant has undertaken to be responsible. Now we find the contract to be that defendant will be responsible for the 1088 by fire of these goods while they remain in the dwellinghouse, but not when out of it. But the defendant could not insist that the goods should remain in the dwelling-house. Plaintiff might remove them at will and for any reason that might incline him to do so; and this being his undoubted right, there would be nothing for defendant to waive in respect to it. Waiver implies a right to object to what is being doue, but there was no such right here. The defendant merely

1

signee is a delivery of the possession of the goods cov-
ered by it, and that thereby the title to the property
passes from the consignor to the consignee. See Hille
v. "Smith, 1 B. & P. 563; Desha v. Pope, 6 Ala.
690; Gibson v. Stevens, 8 How. 384; Grove v. Gilmor,
id. 429; Bryans v. Nix, 4 M. & W. 775; Anderson v.
Clark, 2 Bing. 20; Holbrook v. Wright, 24 Wend. 169;
Grosvenor v. Phillips, 2 Hill, 147; Sumner v. Hamlet, 12
Pick. 76; Nesmith v. Dyeing Co., 1 Curt. 130;
Valle v. Cerre, 36 Mo. 575.

within the statute of frauds, and the action cannot be maintained."

If a bill of lading had evidenced the intent and purpose of the consignor in shipping the bullion, or if this intent had been evidenced by any other conclusive unconditional act, such as a notice of the shipment to the consignee, then a delivery to the carrier in pursuance of such bill of lading or notice would have vested the title in the consignee. But in a case where the consignee had never seen or accepted the property, where there was no bill of lading or notice of shipment, the consignor paying freight, and having the right to recall the goods, or to change their destination, and the agreement under which they are shipped providing that the property shall not be credited to the account of the consignor, until the same has been actually received and sold by the consignee, then the mere act of shipment would not have the effect to vest the title in the consignee.

In the case of Halliday v. Hamilton, 11 Wall. 564, the Supreme Court of the United States says: "If this were the case of a mere agreement to ship produce in satisfaction of antecedent advances, which will not in general give the factor or consignee a lien upon it for his general balance until he obtains actual possession of it, the attachment would hold the property. But the agreement in question is of a different character, and rests on a different legal principle. It appropriates specifically 1,250 bags of corn to Hamilton & Dunnica, with an intention that they shall sell it to pay the draft drawn against it, and this appropriation did not rest in intention merely, for it was exercised, so far as the parties in St. Louis could execute it, by the transmission of a bill of lading to Hamilton & Dun

The transmission of a bill of lading amounts to the
actual delivery of the possession of the property de-
scribed in it, and is a compliance with the statute of
frauds as to the sale and delivery of property. The
contract mentioned in the findings was an executory
contract, to be completed by the delivery of the bul-
lion therein described. Knight, the cashier of the
bank, testifies that the bullion was to be delivered to
the bank at Helena. In the absence of a bill of lading,
or a letter or notice from consignor to consignee in-
forming him of the shipment of bullion, is the fact
that the bullion in question was "billed, shipped and
marked and consigned " to the respondent, such an ap-
propriation of the property to the contract as com-
pletes a bargain and sale, and delivers the possession
thereof to the purchaser? If the consignor had done
some conclusive, unconditional act, by which the con-
signee was, or was to be, informed that the bullion
shipped was to be applied on the consignor's account
for money advanced, then undoubtedly the delivery of
the property to the common carrier, properly marked
and addressed, would have been a delivery to the con-
signee, and an appropriation of the property to the
contract. But the mere shipment of the property
without notice was not such conclusive act. The ship-nica. As soon as the corn was deposited with the com-
ment did not bind the consignor. He did not thereby
lose his control over the property. He might have
stopped it while en route to its destination, and sent it
to some other place or person. By the terms of the
contract the company, the consignor, was to pay the
freight, and the bullion was not to be credited to
the account of the company until it had been received
and sold by respondents. There was something to be
done besides a delivery to respondent: "Said bullion
was to be credited to the account of the company upon
a sale thereof by plaintiff." The respondent had no
right to make this credit until the sale of the bullion.
When the property was sold the proceeds belonged to
the respondent. If there was to be no credit until a
sale, what property passed until a sale had been made?
There must be an acceptance as well as a delivery.
Suppose this bullion had been "billed, shipped and
marked" at double its value, would the consignee
have been bound by the valuation of the consignor?
The carrier had no right to accept of the property for
the consignee; the value was to be ascertained by a
sale, and then, and not until then, had the consignee
any right to make the credit.

In the case of Johnson v. Cuttle, 105 Mass. 449, the court says: "A common carrier, whether selected by the seller or by the buyer, to whom the goods are intrusted, without express instructions to do any thing but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the statute of frauds. The steamboat company having no authority to receive and accept the goods so as to bind the buyer, and there being no evidence that the buyer in person, or by any authorized agent, ever had actual possession of the goods, or opportunity to see them, or ascertain whether they conformed to his order, or ever exercised any control over them by sale or otherwise, or even received any bill of lading of the goods, the case is

mon carrier, who was the bailee for that purpose, the title to it and the right of property in it was changed and vested in Hamilton & Dunnica, to whom it was delivered. This is the effect of all the cases on the subject."

This case is a clear illustration of the rule. If there was a mere agreement to ship goods or produce to pay for advances, the property shipped would not belong to the consignee until actually received and possessed by him. But if the agreement appropriates specific property to the payment of such advances, and such appropriation is evidenced and authenticated by a bill of lading, then the title to the property passes to the consignee by a delivery thereof to the carrier.

In the case of Hodges v. Kimball, 49 Iowa, 577, the facts were that in the spring of 1875 the plaintiffs and W. H. Valleau, at Milwaukee, in the State of Wisconsin, entered into a contract whereby the plaintiffs were to advance the money to said Valleau, on his drafts drawn on them, to purchase wheat and other produce, to be shipped by him, consigned to them at Milwaukee, to be by them sold on the usual commissions, and out of the net proceeds thereof to reimburse themselves for the advances so made; that said Valleau was to forward the railway shipping receipts to plaintiffs as soon as consignments were made; that in pursuance of said contract Valleau, on the 10th day of May, 1876, shipped five car-loads of wheat consigned to plaintiffs, and delivered to the Chicago, Milwaukee & St. Paul Railway Co., and receipts given therefor; that on the same day, and after said shipment and consignment, said wheat was attached as the property of Valleau in the suit of Kimball & Farnsworth against him, and was afterward retaken upon a writ of replevin in this action. This contract and the attending facts are, in substance and effect, the same as in the case at bar. The court in deciding the case says: "The case must be determined upon the facts reported by the referee, with the additional fact that the grain was not bought with money furnished by the plaintiffs. From

the facts reported it appears that the grain in question was shipped on the 10th of May, 1876, from Cresco. On the same day the grain was attached at Cresco, at the suit of the defendants, as the property of W. H. Valleau. The shipping receipts were not forwarded to the plaintiffs until the 13th day of May, and did not reach them until the 15th. The advancements, on account of which the plaintiffs claim their lien, were all made before this grain was shipped [as in the case we are considering]. The facts of this case bring it upon all fours with Elliot v. Bradley, 23 Vt. 217, in which it was held that when goods are consigned to a factor under an agreement, that he shall sell them and apply the proceeds to repay the advances previously made by him to the consignors, he must, in order to acquire a valid lien upon the goods, as against the creditors of the consignor, have the actual or constructive possession of the goods.'

the principle of the cases reviewed in the foregoing opinion."

The rule seems to be that in order to change the title to the property shipped and vest it in the consignee, there must be a bill of lading, receipt or letter of information forwarded to the consignee, or that the advancements were made upon the faith of the particular consignment. It is claimed however that this contract was an executory one, and that the shipment of the bullion completed the purchase thereof by the consignee. In answer to this it may be said that this is not a contract of purchase and sale. It is a mere loan of money, with an agreement to ship bullion as security to the loan. The shipment is not payment. The bullion has to be sold by the consignee and converted into money before any credit can be made on the account of the consignor, or applied upon the loan. This is not a purchase of bullion. A person cannot become a purchaser without his knowledge or consent. There must be an acceptance and delivery of possession. If this were a purchase, there was no acceptance of the property by the purchaser. He had never seen the property. It had never been in his possession. He did not have any notice of the shipment. He could not accept the goods even by a carrier appointed by himself.

Says Mr. Benjamin (Benj. Sales 149, § 160): "It is settled that the receipt of goods by a carrier or wharfinger appointed by the purchaser does not constitute an acceptance, these agents having authority only to receive, not to accept, the goods for their employers.' Boardman v. Spooner, 13 Allen, 353; Grimes v. Van Vechten, 20 Mich. 410; Rodgers v. Phillips, 40 N. Y. 519; Denmead v. Glass, 30 Ga. 637; Shepherd v. Pressey, 32 N. H. 49; Maxwell v. Brown, 39 Me. 98; Spencer v. Hale, 30 Vt. 315; Cross v. O'Donnell, 44 N. Y. 661: Snow v. Warner, 10 Metc. 132; Quintard v. Bacon, 99 Mass. 185; Allard v. Greasert, 61 N. Y. 1.

The court then recites the facts in the Vermont case as follows: "In this case an agreement was made between a manufacturer of cloth in the State of Vermont and the plaintiffs, who were commission merchants of New York, by which the manufacturer was to send his cloth to the plaintiffs for sale on'commission, and was to draw upon them in advance of the sales, and also in advance of sending the cloth if necessary, upon sending the invoices of the cloth forwarded, or to be forwarded, and the plaintiffs were to apply the avails of the sales to repay their advances. Under this arrangement the consignor forwarded to the plaintiffs from time to time invoices of the cloth sent and to be sent, and the cloth was then sent to forwarding merchants at Burlington, and was by them sent to the plaintiff as soon as convenient. The drafts were drawn and the acceptances charged and sales credited upon general account. No bill of lading was sent to the plaintiffs, but shipping bills were sent by the forwarding merchants to their agents in New York, describing the consignor, the consignees, and the marks upon the goods in order to guide the agents in delivering the goods to the consignees. It was held that the goods, after being sent to the forwarding merchants, and while upon the transit between Burlington to New York, remained at the risk and subject to the control of the consignors, and liable to attachment by their creditors. In fact this case is stronger in favor of the consignees than the one at bar, for the cloth was in transit, and the shipping lists had been sent to the SPECIFIC PERFORMANCE-STATUTE OF FRAUDS agents of the forwarding merchants, while in the case at bar the wheat had not moved from the place where it was shipped, and the shipping receipts still remained in the hands of the consignor."

The court also decides that the case of Davis v. Bradley, 27 Vt. 118, is not in conflict with that of Elliot v. Bradley, and cites Bank of Rochester v. Jones, 4 Comst. 497; Winter v. Coit, 3 Seld. 288; Kinlock v. Craig, 3 T. R. 119, in support of its decision, and reviews Holbrook v. Wight, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 147; Bailey v. Hudson R. R. Co., 49 N. Y. 70; Hille v. Smith, 1 B. & P. 563, and Krulder v. Ellison, 47 N. Y. 36, and finds that they are not in conflict with its decision. Upon a motion for a rehearing the following additional authorities were cited: Anderson v. Clark, 2 Bing. 20; Cuming v. Brown, 9 East, 506; Vertue v. Jewell, 4 Camp. 31; Patten v. Thompson, 5 M. & S. 350; Wade v. Hamilton, 30 Ga. 450; Grove v. Brien, 8 How. 429; Bryans v. Nix,4 M. & W. 774; Evans v. Nichols, 3 Man. & G. 614; Alderson v. Temple, 4 Burr. 2235; Berley v. Taylor, 5

We do not know upon what principle a consignee or other person can be made the purchaser of property that he has never seen or accepted, and to which pos session was never delivered, either actually or constructively.

The judgment is reversed and the cause remanded for a new trial.

– PART PERFORMANCE.

MAINE SUPREME JUDICIAL COURT.

GREEN V. JONES.*

In April, 1882, G. made an oral agreement for the purchase of real estate of his brother-in-law, S., who agreed to convey the premises free from all incumbrances, when paid for. G. paid part of the purchase-money down, and entered into the possession of the, premises, and thereafter retained the possession. He made payments toward the balance of the purchase-money at different times, completing the payments in 1869. At the time of the agreement the premises were incumbered by a mortgage, and so remained incumbered until about August, 1882. In September, 1882, S. died intestate. Held, upon a bill in equity by G. against the administrator and heirs of S., that he was entitled to specific performance of the agreement to convey.

N

Hill, 577; and the court in reviewing them says: report. Bill in equity to which a general demur

have examined all of these authorities with care. The most of them are cases where a bill of lading, or receipt, or letter of information, was forwarded to the consignee, or advancements were made upon the faith of the particular consigument, and they fall within

red was filed and joined. The case was then by consent reported to the law court, upon the facts alleged, to make such decision and order such decree as the rights of the parties required.

*S. C., 76 Me. 563.