Jackson v. Laroway. other parties of the second part, to the representatives of the patentees, and the heirs of Leonard Lewis. This indenture appeared to have been made for the purpose of settling and extinguishing the claim of all the patentees, under the patent, to the premises in question; but the indenture was also objected to, and overruled by the judge. The plaintiff then proved, by parol testimony, that the premises lay within the patent. [*285] The defendant proved, that Jan Laroway possessed the premises, in the year 1753; that he died in possession, about ten or twelve years before the trial, and that the defendant, who was a younger son of seven children, had been in possession ever since his father's death. The defendant also offered in evidence a deed for a tract of land, including the premises, from G. V. Bergen and others to Isaac Van Alstine, Martimus Van Alstine, and Jan Laroway, dated the 2d October, 1753, without proof of its due execution by the parties, as an ancient deed, and as evidence that Jan Laroway entered and held the premises adversely, which was objected to by the plaintiff's counsel and admitted by the judge. The defendant then insisted that it having been proved that Jan Laroway was in possession of the premises above five years previous to his death, and having died seised, and the defendant being one of his heirs, the plaintiff's right of entry was tolled by the descent cast. The plaintiff contended that as the defendant appeared to be only one of seven children who, by our statute, were equally entitled to the inheritance, it was to be inferred that he did not take as heir but as a purchaser, and that, therefore, it was not to be considered as a case of a descent cast. The judge decided that the possession of the defendant was to be deemed the possession of all the heirs, and that the adverse possession of the deceased constituted a disseisin, which, with the descent cast, barred the plaintiff's right to recover. The plaintiff submitted to a nonsuit, with leave to move the court to set it aside and grant a new trial. Colden and Jones, for the plaintiff. Jackson v. Laroway. Hoffman and Riggs, contra. RADCLIFF, J. The questions which have been made on this case are : *1. Whether the will of Leonard Lewis ought not [*286] to have been admitted in evidence? 2. Whether the indenture, dated the 1st June, 1787, ought not to have been admitted? 3. Whether there was a disseisin and descent cast, so as to bar the plaintiff's right of entry? As to the first question; I think there can be no doubt, as to the general position, that a will concerning real property may, under certain circumstances, be given in evidence, as an ancient deed. It is generally within the same reason, and is supported by the additional consideration, that until lately, no mode was provided to perpetuate the proof of wills respecting real estates, similar to that in the case of deeds. It has also been expressly applied to the case of an ancient writing, (not a deed,) proved to have been found among the deeds and muniments of an estate, on the ground, that its being found there created a presumption that it was fairly obtained, and preserved for use. (Trials per pais, 370.) The particular ground on which the will in question was refused I understand to be, that it did not appear that the actual possession of the premises accompanied it. Here it is necessary to state, that the premises are part of the great Hardenbergh Patent; that, until the year 1753, the premises were in a wild and uncultivated state, and actually in the possession of no one; at least, it does not appear that they were so possessed, before that period, and the contrary is to be presumed not only from the general state of the country, but from the facts in the case itself; and it may be added, that although possession was taken by the defendant's ancestors, in the year 1753, yet it does not appear that the heirs or representatives of L. Lewis had any notice of that possession till a long time after. The general rule on this subject, I take to be, that a deed appearing to be of the age of thirty years may be given in Jackson v. Laroway. evidence, without proof of its execution, if the possession be shown to have accompanied it, or where no [*287] *possession has accompanied it, if such account be given of the deed, as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine. This rule is founded on the necessity of admitting other proof, as a substitute for the production of witnesses who cannot be supposed any longer to exist. A correspondent possession is always high evidence in support of such a deed; but where no such possession appears, other circumstances are admitted to account for it, and raise a legal presumption in its favor. The English authorities, (Loft's Law of Ev. p. 104; Bull. 255; 2 Bac. new ed. tit. Ev. p. 647; Trials per pais, 220; 12 Vin. 84. tit. Ev. 3 Salk. 154; 1 Keb. 877, pl. 27 ; 2 Keb. 126, pl. 79,) on this subject, plainly distinguish between the case of an ancient deed, supported by possession, and by other circumstances. They expressly state that, where possession has not gone along with the deed, the party ought to give some account of it, to entitle it to be read in evidence; and I think this extent of the rule is founded on reason, and is essential to the ends of justice. In the present case, we have these facts: the will is dated in 1723; the premises remained in their natural state, unoccupied, till 1753, when the defendant's ancestor took the possession; the precise tiine of the testator's death is not ascertained, but for a period of thirty years subsequent to the date of the will, the premises were not actually possessed by any one. The possession of lands in that situation has been construed by our courts, to be vested in the party who shows a paper title. The want of an actual possession under such. circumstances, ought not to operate to the prejudice of any one, and is sufficiently accounted for to remove any objection, on that ground, against the introduction of the will, if it does not afford an argument in its favor. I think, also, that this observation applies with equal force to all the [*288] period during which the representatives of L. *Lewis Jackson v. Laroway. were not apprized of the actual possession taken by the defendant's ancestor. This state of the case ought, at least, to induce us more easily to admit of collateral circumstances, to show the probable authenticity of the will, and to adopt the principle, that if otherwise reasonably accounted for, it ought to be received. No other account was offered to be given of the will, than what may be collected. from the endorsements upon it, and the proof of the handwriting of the clerks, and of one of the judges who certified the two last endorsements. These endorsements cannot be received as evidence of the due execution of the will, because the proofs which they certify were wholly unauthorized, either by the statute or common law. But I think the proof of the hand-writing of those persons ought to have been received, with a view to show the antiquity of the instrument, and that it existed at the periods when those certificates bear date. For this purpose, I think the evidence was proper, and would tend to show the existence of the will, as early, by one of the endorsements, as the year, 1735, and, by the other, as early as 1744. This, in my opinion, would be a more satisfactory account of the will than to show that it had been found among the evidences of the testator's estate, or among the archives of his family, which, in similar cases, has been admitted to be sufficient. Considering, therefore, the situation of the property in question, that from its nature, it was not susceptible of actual enjoyment until a long period after the date of the will, that no adverse possession was taken till the year 1753, and that the antiquity of the will and its probable existence, as genuine, has been shown as far as could be reasonably expected, I think it ought to have been received on the footing of an ancient deed. Without entering into an examination of the two other points, I am of opinion that a new trial ought to be granted. *LIVINGSTON, J. and THOMPSON, J. were of the [*289] same opinion. KENT, J. The first question that arises upon this case is, Jackson v. Laroway. whether the will of Leonard Lewis ought to have been admitted in evidence. There was no statute existing at the time, to authorize the proving or recording the will, in the manner it was done, as far as it was to be considered a devise of real estate. The act of the 11th November, 1692, authorized the county courts in Dutchess, Ulster, &c. to take the examination of witnesses to wills, and to certify those examinations into the secretary's office at New York, to the end, that probates thereof might be granted accordingly; and if the estate did not exceed in value 501. the county courts were authorized themselves to grant probates and letters of administration. This act related only to wills of chattels. The act of the 30th October, 1710, for the better settlement and assurance of lands, declared, that all deeds and writings relating to real estate, being acknowledged and recorded in the secretary's office, or in the county records, where such lands lie, such deed or writing, or the transcript thereof, should be good evidence. This act could not have related to wills, because it speaks only of deeds and writings acknowledged. This meant only proof by the confession of the party, and not proof by the witnesses; whereas in the present case, the will was proved, after the death of the testator, and the validity of every such proof and county record was confined to the county where the lands were situated. At the time of the proof of this will in Dutchess county, and, indeed, prior to the date of the will, Ulster was a distinct county, with its own courts and records. I put out of view, therefore, the endorsements on the will, as not being of any force or consideration in [*290] the *present case. They were null, at least, with respect to lands in the county of Ulster. The will, if admissible at all, must be in the character of an ancient deed. At the time the will was offered and overruled, there was no evidence of any possession having gone along with the deed. If any evidence, afterwards, arose, even of a con |