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Lenox v. United Ins. Co.

until he shall have furnished the opposite party with proof, by the oath of himself or of witnesses; and it appears to me, on examination, that none of the cases afford us a direct judicial decision to that effect. (See Tedcastle v. Holloway, Cro. Eliz. 236. Gold v. Death, Hob. 92. Cro. Jac. 381. 3 Bulst. 64. S. C. Year Book, 10 Edw. 1V. pl. 11, a dictum of two judges. Palm. 166. 1 Bulst. 40. Cockaine v. Goodlage, 2 Dall. 282.) None of them go further than dicta, or collateral sayings, and none define the mode or manner of the proof. I wish, however, to be understood as not giving any definitive opinion upon that point, as it is sufficient to say that, in the present instance, the requisite proof was produced.

I am of opinion, accordingly, that the plaintiff is entitled to judgment.

LIVINGSTON, J. dissented.

LEWIS, Ch. J. not having heard the argument, gave no opinion.

Judgment for the plaintiff.(a)(b)

(a) [Old note] See Talcot v. Marine Insurance Company, 2 Johns. Rep. 130. Haff v. Marine Insurance Company, 4 Johns. Rep. 132. Johnston v. Columbian Insurance Company, 7 Johns Rep. 315. Barker v. Phæniz Insurance Company, 8 Johns. Rep. 307, 317, 318.

(b) Mr. Phillips observes upon the subject of this "case that it is a pretty general practice to allow some time, more or less, according to the law or usage of the particular place, from eight, to thirty, or sixty days, between the time of the claim and proof of a loss, and the payment of it. (Mag. 89. s. 76.) The English marine policies contain no provision on this subject. The American marine policies universally contain a provision, that a loss shall be paid in thirty, or sixty, or ninety days, or some other time, after proof of the loss. The time agreed upon in most policies is sixty days. The evidence of the loss under this provision of the policy is called preliminary proof.

In regard to the kind of proof requisite under this provision, Mr. Chief Justice Thompson said, in giving the opinion of the court in Lawrence v. Ocean Ins. Co., (11 Johns. 259,) that it "requires only reasonable information to be given to the underwriters, so that they may be able to form some estimate of their rights before they are obliged to pay. This clause has always been liberally expounded, and is construed to require only the best evidence of the loss which the party possesses at the time. (See also Barker v. Phœn. Ins. Co. 8 Johns 237; Talcott v. Mar. Ins. Co. 2 Johns. 130.)

Lenox v. United Ins. Co.

The ordinary proofs of a loss are the invoice (Allegre v. Maryl. Ins. Co. 6 Harris & Johns. 408,) bill of lading, &c. to show the interest of the assured; the survey (8 Johns. 307, Anthon's Cas. N. P. 16. n.) of the vessel or cargo, protests, consular certificates, letters of the captain or other correspondents' &c. to show that a loss has taken place. (Robbins v. N. Y. Ins. Co. 1 Hall, 619.) Where the captain had been made prisoner, and the assured, being informed of the loss by the pilot, communicated his information to the underwriters; Mr. Chief Justice Parsons said, in giving the opinion of the court, "The evidence of the loss was sufficient. Nothing can be objected but the want of affidavit, which it is not usual to send. The master was a prisoner, and could make no protest, which is the usual evidence." (Munson v. New Eng. Mar. Ins. Co. 4 Mass. Rep. 88. See also Johnston v. Col. Ins. Co. 7 Johns. 315) Letters from the master or other person, giving an account of a loss, have been held to be sufficient preliminary proof, (Craig v. Un. Ins. Co. 6 Johns. 226; Barker v. Phan. Ins. Co. 8 Johns. 237.) as also the protest of the master and mate.

See further upon this subject, Lovering v. Mercantile Ins. Co. 12 Pickering 348, Haff v. Marine Ins. Co. Anthon, 14. In Allegre v. Ins. Co. (6 Harris, Johnson 408,) it was held that the proof to be exhibited in case of a partial loss within a clause in the policy, providing for payment "in ninety days after proof and adjustment" was the protest, bill of lading, and invoice, or such equivalent proof as the nature of the loss admitted.

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Jackson v. Rumsey.

[*234] *JACKSON, ex dem. WOODHULL AND OTHERS, against RUMSEY.

The record of a will proved under the statute, (sess. 24, c. 9, s. 6,) is not conclusive upon the heir, so as to prevent the admission of evidence to impeach its validity. The record of a will, like that of a deed, is only prima facie evidence of its authenticity.

A person who was a tenant under a devisee of part of the estate devised, was held to be a competent witness, in an action of ejectment brought by the heir against a tenant, who held part of the premises under the testator or devisee, and under the witness, in order to impeach the validity of the will

THIS was an action of ejectment. The lessors of the plaintiff proved themselves the heirs of Nathaniel Woodhull, who died seised of the premises in question. The defendant then offered the record of a will of Nathaniel Woodhull, proved and recorded, agreeably to the statute, in the court of common pleas of Orange county, and which was read in evidence to the jury. By this will, it appeared that Elizabeth Woodhull was the sole devisee of all the estate of the testator.

The lessors, in order to prove that the testator was non compos at the time of executing the will, or that the will had been obtained by unfair practices, offered Samuel Strong as a witness. The witness was objected to, because it appeared that he was a tenant under Elizabeth Woodhull, of part of the real estate claimed by her, under the will; and that the defendant held a part of the premises, either under a contract made with the testator, in his lifetime, or under Elizabeth Woodhull, the devisee, and the residue of the premises under the witness, as tenant; that his evidence, therefore, went to impeach the title under which he held, and also to impeach the title he had conveyed to the defendant, who was his tenant. The judge before whom the cause was tried, thinking the objection well founded, rejected the witness, and the point was reserved, as a ground for a motion for a new trial. It was further objected, on the part of the

Jackson v. Rumsey.

defendant,t has no evidence could be received to invalidate the will, after it had been duly proved and recorded, according to the statute; that any evidence to impeach the validity of its execution, must be given at the time and place when and where the will is offered to be proved, and before it is recorded. But this objection was overruled by the judge, and several witnesses were examined on the part of the plaintiff, to invalidate the will. The jury found a verdict for the defendant.

[*235]

A motion was afterwards made to set aside the verdict, and for a new trial, for the misdirection of the judge. Hamilton and Evertson, for the plaintiff.

Hoffman, Riggs and Jones, contra.

KENT, J. delivered the opinion of the court. Two questions were raised on the argument of this case.

1st. Whether the record of the will was conclusive, so that no evidence was admissible to impeach the validity of the will?

2d. Whether Samuel Strong was a competent witness? 1. The will was proved under the act of 4th April, 1786, (Laws, vol. 1, p. 276; Rev. Laws, sess. 24, c. 9, s. 6,) which enacts, "that where real estate shall be devised by will, &c. the executors, or other persons interested, may cause the will to be brought before the court of common pleas of the county where the lands lie, and the court shall cause the witnesses to be examined in open court, and if it shall appear that the will was duly executed, and the testator of sane mind, &c. the court shall direct the will and proof to be recorded. But the court shall not proceed to examine the witnesses, &c. until notice shall be given to the heirs, or if not to be found within the state, fixed up at the last place of abode of such testator, at least 15 days before such examination ;" and the statute further adds, "that the records of wills, so proved and recorded, shall be as good and effectual in all cases, as the original wills would be, if produced and proved."

I am satisfied, from the plain letter of the statute, that

Jackson v. Rumsey.

[236] it never intended that the proof so taken should be conclusive upon the heir. The words of the act do, by no means, warrant such a construction; and it would be unreasonable to adopt it, without the most positive injunction, since the notice to the heir is so short, as in case of his absence from the state, the proof may take place without his knowledge, and, consequently, without an opportunity, on his part, to controvert it. The instance of probates of wills of chattels, which are held to be conclusive upon the courts of common law, was cited upon the argument, as analogous to the present case, but the reason for such conclusiveness does not apply here. The spiritual courts in England have exclusive jurisdiction in the case of probates of wills, and, for that reason, the courts of law cannot pass a judgment concerning a will, in opposition to the decision of the ecclesiastical court. Nor does there seem to be any ground for the suggestion, that the statute had an eye to this mode of proof, as a substitute for the mode establishing a will in chancery; for if a question of fraud in obtaining the will, or on the sanity of the testator, arises in that court, it is never tried there; but an issue at law is uniformly directed. (2 Atk. 321, 421. 3 Atk. 17.) This statute proof is more like the case of a bill to perpetuate testimony, for it directs the proof to be reduced to writing, and to be entered upon record, which would be altogether useless, if the record of the will was conclusive. The record of a will, therefore, like that of a deed, is only prima facie evidence of its authenticity, and may be repelled by contrary proof.(a)

2. With respect to the second question, I have looked

(a) The statutes of New York on the subject of proving and recording wills of real estate and certifying the proof, which till lately confined the power to the courts of common law, will be mostly found by the following references to different editions. (1 Greenl. 236; 2 id. 235. 1 R. L. of 1801, p. 178, act of April 5, 1803, sess. 26, ch. 99. 1 R. L. of 1813, p. 361. 2 R. S of 1830, 2d ed p. 2, et seq. See also Jackson, ex dem. Colden v. Walsh, 14 John. Rep. 407, in which several old statutes are collated and applied) None of these statutes make the probate more than prima facie evidence. (Cow. and Hill's Notes to 1 Phill. Ev. 1384.)

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