scope of the design to defraud creditors of the grantor are admissible against the other."" Where a parent executes a series of deeds to several of his children, seemingly in pursuance of a general plan, evidence of what he said at the time of delivery of one of them, tending to show a purpose to discriminate against a part of his children in the distribution of his property, is competent evidence that all the deeds, including even those of an earlier date, were intended as preferential gifts."1 § 1069. Self-serving declarations Self-serving declarations should be excluded; 72 also, in an action to recover land alleged to have been conveyed to plaintiff's wife's 70 Chicago Lumber Co. v. Cox, 147 P. 67, 94 Kan. 563. 71 Plowman v. Nicholson, 106 P. 279, 81 Kan. 210, affirming judgment 105 P. 692, 81 Kan. 210, on rehearing. 72 Conversations between defendants and third persons held inadmissible where they constituted self-serving declarations. Hammett v. State, 141 P. 419, 42 Okl. 384, Ann. Cas. 1916D, 1148. In action for price of goods sold but not delivered, on theory that title has passed, seller could not show that after buyer refused to settle he attached goods as buyer's property, as to do so would countenance seller's self-serving conduct. Mangelsdorf Bros. Co. v. Kolp, 64 Okl, 33, 165 P. 1141. Though plaintiff testified to statements by defendants in conversations, refusal to permit her to state what she said to them, when her statements were self-serving and did not tend to explain language of defendants, was not error. Erickson v. Erickson, 158 P. 48, 98 Kan. 244. In an action in which an order of arrest has been obtained, it is not error for the court to refuse to allow the plaintiff to introduce, as evidence to support his case, his own affidavit made to procure the order of arrest. Johnston v. Johnson, 24 P. 1098, 44 Kan. 666. A statement as to the cause of an accident, made after apparent delay, and a purpose to postpone the making of it until witnesses were present, makes the narration a self-serving declaration, inadmissible in evidence. Atchison, T. & S. F. Ry. Co. v. Logan, 70 P. 878, 65 Kan. 748. Where a claim was presented against decedent's estate for a loan alleged to have been made to the decedent, and evidence was introduced that at the time of the alleged loan claimant was financially embarrassed, evidence on claimant's part that at one time she had proposed to pay a large debt to one of her creditors, but that payment was declined, was properly excluded as a self-serving declaration. Haines v. Goodlander, 84 P. 986, 73 Kan. 183. In an action for breach of marriage promise, plaintiff may not give in evidence her declarations to third parties as to the conduct of the defendant in relation to his agreement to marry her. Cooper v. Bower, 96 P. 59, 78 Kan. 156, rehearing denied 96 P. 794, 78 Kan. 164. But where defendant introduces evidence of plaintiff's declarations during the alleged engagement that she would not marry the defendant, plaintiff is brother through a conspiracy of the wife and brother, where it appeared that plaintiff had made a deed to his wife's brother, and that after he had declined to consummate the purchase plaintiff's wife got the deed and had it recorded, declarations of plaintiff's wife, since deceased, made some years after recording of the deed, that she and her husband owned the land at that time were admissible against the brother, where plaintiff's contention was that he and his wife owned the land and were in possession of it.73 Where declarations of a husband, since deceased, were admitted. to prove that an antenuptial contract had been canceled by mutual consent, other declarations of the husband tending to prove the contrary should be received in evidence."4 In proceedings to dissolve an attachment, declarations of defendant, made several months before his property was attached, to the effect that he intended to return to the state, and had not abandoned it as his residence, are admissible in his behalf.75 § 1070. Against interest 76 Declarations against interest ordinarily should be admitted. Declarations made against interest by persons since deceased should be admitted, although not a part of the res gestæ, and though the declarant is not a party, or in privity, with a party to the action. But where, in an action for damages for death by 77 properly allowed to give evidence of her declarations during the same period that she was engaged to marry him for the purpose of showing mutuality of the contract. Id. 73 Hunnicutt v. Oren, 84 Kan. 460, 114 P. 1059. 74 Gordon v. Munn, 125 P. 1, 87 Kan. 624, Ann. Cas. 1914A, 783, rehearing denied 127 P. 764, 88 Kan. 72, Ann. Cas. 1914A, 783. 75 Bigelow v. Bear, 68 P. 73, 64 Kan. 887. 76 In an action against executors for services rendered testator, where the executors set up a contract and performance by deceased, testator's declaration that plaintiff had rendered services and that there was no agreement between them was admissible in plaintiff's behalf. Wright v. Stage, 111 P. 467, 83 Kan. 445. The declarations of an engineer killed in a collision, concerning his conduct and other facts relating to the cause of the injury, made after it was received, are admissible in evidence against his widow. Walker v. Brantner, 52 P. 80, 59 Kan. 117, 68 Am. St. Rep. 344. 77 Declarations made by a person since deceased against his pecuniary or proprietary interest, concerning facts within his knowledge which are material and relevant to the issue, are admissible in evidence, although not a part of the res gest, and although the declarant was not a party nor in priv wrongful act, the defendant, without notice to plaintiff, and shortly prior to the death of the widow of the deceased, took her deposition, this deposition was not a statement against interest, and as such admissible in evidence, under the exception to the rule of law excluding hearsay evidence.78 When an infant becomes a party to an action, the same species of evidence is received against him as though he were an adult; and the mere fact that the court rules that he does not understand the nature of an oath will not authorize the rejection of the declarations of an infant plaintiff against his interest. His declarations are to be cautiously received, but the value and force of the same are necessarily left to the determination of the jury.79 § 1071. Persons in possession 80 Declarations of persons in possession or control should usually be admitted, particularly where they constitute verbal parts of an act of occupation,81 or are in continuation of previous acts and declarations of the same general character,82 or explain the possession and the character of the ownership.83 ity with a party to the action. Mentzer v. Burlingame, 118 P. 698, 85 Kan. 641. 78 Union Pac. Ry. Co. v. Sternberger, 54 P. 1101, 8 Kan. App. 131. 79 Atchison, T. & S. F. Ry. Co. v. Potter, 58 P. 471, 60 Kan. 808, 72 Am. St. Rep. 385. 80 In partition between children of decedent depending upon her delivery of deeds, defendants' objections to declarations of decedent indicating nondelivery of deeds was properly overruled. Randall v. Randall, 101 Kan. 341, 166 P. 516. Evidence of statements of defendant, shortly before a memorandum of sale 81 In an action where there is an issue of adverse possession, the declarations of the occupant importing title in himself, and which give color to his possession, are admissible as verbal parts of his act of occupation. Liebheit v. Enright, 94 P. 203, 77 Kan. 321. 82 In a suit by a woman's second husband against the beneficiaries of the first husband's will on the ground that she had not elected to take the life estate in the land given her by the will, her acts and declarations showing such an election occurring or made after a homestead right of occupancy of the land had become vested in the second husband are admissible as evidence; they being in continuation of previous acts and declarations of the same general character. Cook v. Lawson, 66 P. 1028, 63 Kan. 854. 83 In a suit to establish a parol gift of lands by complainant's father since deceased, his declarations made while in possession and control of the land were admissible, not as assertions of title, but to explain his possession and the character of his ownership. Butts v. Butts, 114 P. 1048, 84 Kan. 475. Acts and declarations of a possessor of personalty concerning the same are admissible to determine the nature of such possession; but evidence of defendants that they had told their neighbors that they owned the land was inadmissible to show adverse possession.85 § 1072. Age and pedigree Evidence that a person who is dead at the time of trial stated that she was more than 18 years of age on a certain date has been held admissible:86 But an affidavit of the deceased mother of an alleged minor concerning his age, where it was not shown that the affidavit was made in good faith, unbiased by any issue between the parties, and made before commencement of the litigation, is not admissible.87 Evidence that a certain person executed a note and mortgage prior to the execution of a deed in controversy in ejectment was held admissible upon the issue of whether she had attained majority at the time she executed the deed.88 Declarations relative to pedigree are admissible; 89 but they are not entitled to the same weight that is to be given to direct and positive evidence.90 of land by him was executed, that he owned the land described, and that he owned no other land in the county, was competent to show that he owned and claimed to own no other tract in the county. Hampe v. Sage, 125 P. 53, S7 Kan. 536. Where a deed conveyed land to a husband and wife jointly, and as to the wife was intended as a mortgage to secure money advanced to her toward the purchase price, in a controversy between the heirs of such grantee as to whether the deed was in fact a mortgage, the declarations of the husband, while in possession, explanatory of the same, and the rights claimed in the land, were competent evidence. Hubbard v. Cheney, 91 P. 793, 76 Kan. 222, 123 Am. St. Rep. 129. 84 Ragan v. Citizens' State Bank of Foraker, 38 Okl. 65, 131 P. 1093. 85 Broughan v. Broughan, 61 P. 874, 10 Kan. App. 575, judgment affirmed 64 P. 608, 62 Kan. 724. 86 Bell v. Bearman, 133 P. 188, 37 Okl. 645. 87 Perkins v. Baker, 137 P. 661, 41 Okl. 288. 88 Bell v. Bearman, 133 P. 188, 37 Okl. 645. Where the grantor's mother and sister were dead at the time of the trial of an action in ejectment, it was not error to admit in evidence their affidavits as to the grantor's age, made long before the execution of the deed whose validity was disputed. 89 Lauderdale v. O'Neill (Okl.) 177 P. 113. 90 Lauderdale v. O'Neill (Okl.) 177 P. 113. § 1073. Dying declarations Dying declarations are not admissible in civil actions, except where part of the res gestæ.91 However, the Supreme Court of Kansas has held otherwise in a decision which other courts will be slow to follow.92 DIVISION IX.-BEST AND SECONDARY EVIDENCE § 1074. Necessity of best evidence The law requires that the best possible evidence be produced, and secondary evidence is admissible only when it clearly appears that primary evidence is unattainable, and then only after a showing of diligence.98 If the best evidence possible cannot be produced, then the next best evidence should be admitted."4 91 Note, 56 L. R. A. 360; 50 L. R. A. (N. S.) 1167. 92 Dying declarations are admissible in evidence in civil actions. Thurston v. Fritz, 138 P. 625, 91 Kan. 468, 50 L. R. A. (N. S.) 1167, Ann. Cas. 1915D, 212. 93 Kennedy v. Canadian Pac. Ry. Co., 151 P. 252, 87 Wash. 134. Where some loss was suffered from the seller's failure to deliver machinery in time for harvesting, it must be obtained from the best evidence the nature of the case affords. Cushman Motor Works Co. v. Kelley (Okl.) 173 P. 1042. Under Gen. St. 1889, c. 76, providing for copying into the records of the office of the register of deeds of the county in which the land is situated all patents, and that all records of patents so recorded shall be received in all courts as prima facie evidence of the existence of such patents, and conclusive evidence of the existence of such records, in an action of ejectment the record of the patent to the land in controversy is admissible, and preliminary proof, accounting for the original patent, need not be made. Green v. Holmes, 58 P. 128, 9 Kan. App. 886. A schedule of the articles taken on replevin, with the estimated value of each, prepared by plaintiff before the trial, is not competent testimony to establish what articles were wrongfully taken, or the value of the same; but testimony of what articles were taken, and their value, must be orally given by the witness before the court and jury, or in a deposition. Werner v. Graley, 38 P. 482, 54 Kan. 383. The statements of a witness who has no knowledge of one's expectancy of life except such as he may have gained from consulting life tables is inadmissible, the tables themselves being the best evidence. Erb v. Popritz, 52 P. 871, 59 Kan. 264, 68 Am. St. Rep. 362. 94 Commercial Union Assur. Co., Limited, of London, England, v. Wolfe, 137 P. 704, 41 Okl. 342. Request that witness state fact as to a certain choice or election did not call for evidence not the best. Beckman v. Ash, 103 Kan. 437, 173 P. 920. When the execution of a deed is admitted but its validity attacked on sev |