Staring v. Bowen

By the Court, Allen, J.

The plaintiff moves for a new trial upon a bill of exceptions, and must rely upon the grounds taken and the points made by him upon tha trial. He there claimed expressly as devisee under a will of his father, and put forth no other ground of claim whatever. He can not, therefore, be permitted, upon this occasion, to insist that he was wrongfully nonsuited, for the reason that the evidence showed a seisin in his ancestor, and that he was entitled to recover as heir, if no will was proved. In his declaration he claimed one *113 undivided fourth part of the premises; which would have been his interest if he had succeeded in establishing his claim under the will; whereas, in the capacity of heir, his interest would have been one-eighth. And in the bill of exceptions made by himself, he has stated that he claimed title under the will. He must be confined to that claim. (Conven & Hill’s Notes, 791, and cases cited.) There appears to have been no question made upon the trial as to the title of the plaintiff’s ancestor; and the only question was whether the will was sufficiently proved to admit it to be read in evidence:

It was first offered in evidence as proved before the surrogate of the county of Montgomery, on the 16th of June, 1814, by the oath of Luther Pardeé, one of the subscribing witnesses, no account being given of the other witnesses; the proof being evidenced by the certificate of the surrogate; And an exception was taken to the decision of the circuit judge excluding the will as evidence under that proof. This exception is not now relied upon. The proof came far short of any statutory ré'qúiréiüent upon that subject; and the certificate of the surrogate was not evidence, either by statute or the common law. (Jackson v. Laraway, 3 John. Cases, 283. 1 R. L. 365, § 6. 1 K. & R. 178, § 6.)

It was proved, upon the trial, that one of the subscribing witnesses was living within the jurisdiction of the court, and the plaintiff then proposed to read the will in evidence as an ancient will, without proof of its execution; and .in connection with such proposition gave in evidence two agreements relating to the occupation of the premises; the one between the widow of the testator, who had, under the will, a life estate therein, and who died in 1840, and Frederick A., and Philip A. Staring, two of the sons of the testator, and another agreement between Frederick A., and Philip A., and John Staring, by which the latter agreed to convey to the former his interest in the premises. The plaintiff attempted, but unsuccessfully, to show that the defendant had occupied in continuation of the same title and under the will. The defendant had been in possession, at the timé of the trial, for some eight or ten years, and the testator died in 1812. *114 The circuit judge rejected the will and agreements “ on the ground that there appeared to be a living witness to the will within the jurisdiction of the court, and that from the death of Nelly, the widow, in 1840, back to the death of the testator, was less than forty years; and there was no evidence, (though an attempt had been allowed and made,) to prove the fact of the defendant’s occupation or claim under the will, though it was admitted he had been in possession several years.”

A point is now made that the agreements before referred to were improperly rejected, for the reason that they tended to characterize the possession of the premises, for a part of the time, after the death of the testator, and show it in harmony with the provisions of the will. I do not understand that the agreements were rejected as evidence, but that the circuit judge merely held that they were not alone sufficient to authorize the reading of the will in evidence. That they only showed possession under the will from 1817 to 1840, less than thirty years, and terminating several years before the trial. Such was clearly the effect and extent of the decision. In this view the decision was clearly correct.

There is doubtless a clerical error in making up the bill of exceptions, in relation to the number of years which the possession must have followed the will to entitle it to be read in evidence as an ancient will, without proof. Thirty years is the time as now settled; but whether thirty, or forty, as stated in the bill of exceptions, is immaterial in this case, as the plaintiff failed to show possession in accordance with the will for either period. Mere efflux of time will not authorize a will of thirty years standing to be given in evidence without proof. There must have been possession under it. (1 Phil. Ev. 504. Jackson v. Luquere, 5 Cowen’s Rep. 221. Rancliff v. Parker, 6 Dow 202, per Ld. Eldon.)

There are cases, it is trae, in which other circumstances tending to show the genuineness of the instrument have been allowed to supply the want of proof of a continued occupation under the will for thirty years, where the premises have been a p.art of the time wild and uncultivated, and the party has given *115 the best evidence of the execution of the will of which the case was susceptible. (Jackson v. Luquere, 5 Cowen, 221. Jackson v. Laraway, 3 John. Cases, 283.)

In this case, however, there were no circumstances shown to establish the genuineness of the will, and the evidence was that the premises had been occupied by some one from the death of the testator; and the plaintiff was unable, although permitted to make the effort, to show such possession in pursuance of the provisions of the will, for a period of thirty years. And there was better evidence of the execution of the will within reach of the plaintiff, namely, one of the subscribing witnesses thereto, residing within the state. Where possession is relied upon instead of the ordinary and usual proof of the execution of a will, it is not sufficient to exclude it that one of the witnesses to the will is still living. (Doe v. Wolley, 8 Barn. & Cress. 22. S. C. 3 C. & P. 402, and 2 Man. & Ryl. 195.) But the possession which will excuse the production of witnesses to the will, must be for the full term of thirty years, if not to the time of the commencement of the action; and the thirty years with us commences at the death of the testator, and not, as in England, from the date of the will. (Doe v. Wolley, supra; per Kent, in Jackson v. Laraway, and cases cited by him. Fetherly v. Waggoner, 11 Wend. 599 . Jackson v. Christman, 4 Id. 277. Jackson v. Van Dusen, 5 John. R. 144. Jackson v. Blanshan, 3 Id. 292.) Although a will of more than thirty years standing may, in the discretion of the judge, be permitted to be read as an ancient will, before proof of an accompanying possession, still it is a question as to the order of proof, in the discretion of the court, whether the possession shall be first proved, or the will first given in evidence, in order that the court may be able to say whether the possession has been in accordance with the provisions of the will. (Doe v. Passingham, 2 C. & P. 440. Cowen & Hill’s Notes, 718.) In this case the proof was all before the court at the time of making the decision, and the will was properly excluded. A new trial is denied.