Dickinson and Wife v. Codwise and others.

ter his death, indicates that she then entertained the same views and feelings. Hence she made no inventory, and kept no ac

counts.

No argument against an account is to be derived from these considerations.

The bar of six years set up in the answer is not applicable to this case. Mrs. Codwise was the testamentary guardian of Mrs. Dickinson, who did not become of age till 1829. The bar provided for such a case in the Revised Statutes is ten years. I believe it has not yet been settled whether the Revised Statutes, relative to the time of commencing suits in equity, applied to causes of action existing when those statutes went into operation. In Van Hook v. Whitlock, (3 Paige's R. 417, 8,) the chancellor decided that a plea, setting up the statute as it is done here, insisting on a bar not applicable to the case, will not enable the party to avail himself of a different bar provided by the same statute. The same case decides that a general reference to the statute, without specifying the particular bar, will not avail. And in this respect the same certainty is required in an answer, that is enforced in a plea. I need not therefore decide whether the Revised Statutes affect the complainants claim for an account.

If the ten years limited by those statutes were made the limit here, it perhaps would not influence the result. The receipts of Mrs. Codwise, from the death of her husband, would at all events be set off against her payments on the mortgage debts from time to time after that date; and those payments, and her claim upon Mrs. Dickinson for her education and maintenance, may suffice to balance all that is chargeable to her prior to April 20, 1832.

This leads me to speak of the claims last mentioned. Mrs. Codwise, on the accounting, should be allowed in her separate account with the complainants, for the education and maintenance of Mrs. Dickinson during her minority. Also for such board, maintenance, &c., since her marriage, both of herself and husband, as have not been otherwise paid and satisfied, provided there was an intention to charge them therefor.

As to the debt of James N. Codwise to the estate, if there

Dickinson and Wife v. Codwise and others.

were any such, Mrs. Codwise, as his devisee and legatee, is accountable for the same to the extent of the property which came to her from him.

If any point which ought to be adjusted in this decree has escaped me, it can be brought forward on settling the draft of the decree.

As to the competency of Charles F. Codwise as a witness. He had been declared a bankrupt, but had not been discharged. Upon authority it would seem that he was incompetent. Butler v. Cooke, (Cowp. 70;) Masters v. Drayton, (2 T. R. 496.) I do not, however, deem his testimony important in this stage of the case, and the question need not be determined. If he has since received his discharge, the difficulty may be obviated by examining him anew before the master.

No one having appeared for the assignee in bankruptcy, the rights of Mrs. Van Rensselaer will, without examination, be deemed to be such as she has claimed, as between her and the assignee.

As the circumstances show an exclusion by Mrs. C. of her co-tenants in common, the complainants are in strictness entitled to a receiver. In reference to all the lands held in common, excepting the store and lot No. 90 South-street, the difficulty of apportioning the rent to which the parties are entitled in common, is so great, that Mrs. Codwise may give security for such rent; and in that case, the receivership will be extended only to number 90 South-street.

The decree will reserve all further questions and directions.

Grant v. Grant and others.

GRANT v. GRANT and others. (a)

On a bill to establish a lost will, proof must be made of its execution and validity, its contents by two witnesses, its existence at the death of the testator, and its loss. If established at all, it must be established against all the heirs at law of the decedent. Hence, testimony of the admissions of part of the heirs, does not furnish the requisite proof.

To prove the due execution of the will, each of the statutory requisites must be shown, viz., the testator's subscription at the end of the will; made in the presence of each of the two witnesses, or acknowledged in their presence; its publication; and its attestation by two witnesses at his request.

The declarations of the decedent are not competent to prove the existence or execution of a will.

The evidence to prove the execution of a lost will, was that of a solicitor, who testified that he drew a will for the decedent at the date alleged, that he cannot recollect who witnessed it, that he was in the habit of witnessing wills, and his clerk, if present, usually witnessed them; and of the solicitor's clerk, who testified that the will was drawn up in the solicitor's office, that he cannot say positively who witnessed it, his impression is that he witnessed it, but he cannot say with certainty.

Held, that the testimony did not establish the execution of the alleged will. When a will is produced, subscribed by the testator, with an attestation clause, signed by two witnesses, stating that he subscribed it in their presence, and declared it to be his last will and testament; such subscription and publication will be presumed on proof of the signature of the witnesses, although they have forgotten their occurrence.

Albany, January 9 and 10; New-York, March 2, 1844.

THE bill in this cause was filed by Alexander Grant, to establish a last will and testament alleged to have been made in October, 1835, by his father, Alexander Grant 3d, and lost or destroyed after his death. The decedent died on the 1st of February, 1842, at the age of 84 years. The complainant had for a great many years after he came to manhood, lived in the same house with his aged parents, taken care of them, and conducted the farm. By the will set up in the bill, the decedent

(a) This case and the next, and also Kniskern v. Wieting, The Lutheran Churches of St. Johns, &c., reported post, were heard at a special term held at the capitol, in the city of Albany, on the second Monday of January, 1844.

Grant v. Grant and others.

gave about 300 acres of his farm to the complainant, charged with legacies to his sisters; and he gave about 84 acres to the children of another son.

The will was such as the decedent would be likely to make under the circumstances.

The widow, heirs at law, and next of kin of the decedent, were made defendants in the suit, and several of them contested the claim. There was a great mass of testimony taken. So much of it as bears upon the point decided, is stated in the opinion of the court.

L. Monson' and S. Gordon, for the complainant.

A. J. Parker, for the principal defendants.

A. Becker, for other defendants.

THE ASSISTANT VICE-CHANCELLOR.-It was not contended at the hearing, that the court can establish a will against a part only of the heirs at law and next of kin of the decedent. Therefore, the testimony produced by the complainant, consisting of the admissions and declarations of two or three of the heirs of Alexander Grant 3d, will not aid in determining the question at issue. Those admissions are not evidence against the other defendants. The court is to take proof of the execution and validity of the alleged lost will. (2 R. S. 67, 63.) These facts being put in issue in this cause, such proof must be made as will show the execution and validity of the will, its contents by two witnesses, its existence at the death of the testator, and its subsequent loss. (2 ibid. 67, 68, § 63, 67.) Unless its due execution is made out, it will be unnecessary to examine the subsequent points; and I will therefore first examine that question.

By the Revised Statutes, "Every last will and testament of "real or personal property, or both, shall be executed and at"tested in the following manner :

"1. It shall be subscribed by the testator at the end of the "will.

Grant v. Grant and others.

"2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be ac"knowledged by him to have been so made, to each of the at"testing witnesses.

"3. The testator, at the time of making such subscription, or "at the time of acknowledging the same, shall declare the in"strument so subscribed to be his last will and testament.

"4. There shall be at least two attesting witnesses, each of "whom shall sign his name as a witness, at the end of the will, "at the request of the testator." (2 R. S. 63, 40.)

Each of these requisites is indispensable to the due execution of a will, and each must be shown, to enable the court to establish its validity.

I will examine the proofs in this cause, as bearing upon each subdivision of this section.

First. It must be subscribed by the testator at the end of the will.

If evidence of the declarations of the decedent were competent to prove the existence and contents of a will, there is doubtless enough in this case to establish the execution of the will in question. But the authorities are decisive against the competence of such testimony. Dan v. Brown, (4 Cowen's R. 483;) Jackson ex dem. Brown v. Betts, (6 id. 377,) and the cases there cited.(a)

After the execution of a will is established, and the issue is upon its revocation, my impression is that the declarations of the decedent would be admissible, although they should be cautiously weighed. See the case last cited, when in the Court for the Correction of Errors, (6 Wend. 187;) Davis v. Davis, (2 Addams' Eccl. R. 223.)

The only evidence in the case that the testator executed the will set up in the bill, is that of Mr. Monson, and his then clerk, Mr. Menzies.

Mr. Monson recollects drawing a will for the decedent, and

(a) As to the declarations of the decedent to prove a will, where but one witness recollects its execution, see Reynolds v. Reynolds, (16 S. & R. 82.)