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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 es. tate, 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 10 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

Jackson v. Laroway.

structive possession, it was not until the plaintiff's claim under the will had been abandoned, and a claim set up to be deduced from a different source. The deed, when presented, appeared as a naked parchment, without any collateral support, unless it be the endorsements I have mentioned.

No authority authorizes the admisssion of such a writing. There are several loose dicta to be found, that an ancient deed proves itself; and these dicta are silent as to the circumstance that possession must have accompanied it. But, whenever we can discover the facts in the cause, in which these sayings arose, we perceive that possession was an in gredient in the case. There is no case which lays down the rule, in positive terms, that an ancient deed is admissible, without proof, and without possession having gone with it; but there are several cases which directly state the rule of evidence to be, that a deed is not admissible, as an ancient deed, without possession, and without proofofits execution. It is stated in Gilb. (p. 89,) to have been ruled, a century ago, that if possession has not gone along with an ancient deed, the presumption in its favor fails, if they give no account of its execution. This rule is more fully and explicitly laid down by Peake, (72, 73.) He observes, “ that a deed of thirty years' standing, requires no further proof of its execution than the bare production, provided the possession has been according to the provisions in the deed; but as this rule is founded on presumption, it does not apply to cases where there are circumstances to raise a contrary presumption, as if the possession had not been according to the deed, or it appears to have been razed,” &c.

« In all [*291) these cases," he adds, “it will be incumbent to give the ordinary evidence of the execution of the deed.”

This rule regarding possession, as supplying proof, has been of very ancient standing, and has received a pretty unisorm sanction.

In the treatise by the name of Fleta, this doctrine is laid down in the chapter on the proof of deeds, "that if no witnesses are produced, who saw the execution of the charter, Vol. III.

47

Jackson v. Laroway.

yet the grant will prevail, if homage was taken, and there hath been continual seisen.” (Fleta, lib, 6, c. 34.) Lord Coke says, in respect to the same subject, that if all the witnesses to a charter of feoffient be dead, then violent presumption, which stands for proof, is continual and quiet possession. (1 Inst. 6, b.) In the case of Isack v. Clarke, (1 Roll. Rep. 132,) the court observed, that if, at the assises, a deed of feotřment be given in evidence of above 40 years old, (which made it an ancient deed,) and there be no proof of livery ; yet if possession hath been held all the time according to the deed, this is good evidence to the jury. Again, in the case of James v. Trollop, (Skinner, 239; 2 Mod. 323,) it was advanced as law, by Holt, then at the bar, that when a deed before the time of memory (which was then 60 years, or the time taken in a writ of right) is supported by usage after, such a deed is pleadable and good ; and the Ch. J. approved of this distinction. The last case I shall mention to this effect is that of Forbes v. Wale; (1 Black. Rep. 532,) there, an old bond of 32 years' standing, was offered in evidence before Lord Mansfield, without any proof of its execution. It was objected that it could not be read until proved, there having been no payment, or any other mark of authenticity, and that if the length of the date was alone sufficient to establish it, a knave had nothing to do but forge a bond, with a very ancient date. The judge allowed the

distinction, and directed the bond to be proved. It (*292) must be admitted that an ancient deed *brought for

ward to disturb inheritances and challenge title, has no better claims to indulgence than an ancient bond.

These authorities go strongly to the point, that an ancient deed, standing naked and unassisted, will be of no avail, but that if it be supported by seisen, possession, or usage, it may be received.

The only doubt that could arise is, whether the endorsements on the will be not giving some account of its execution, according to the expression in Gilbert. But after the current of authorities which go to ascertain what is required

Jackson v. Laroway.

to supply the proof by witnesses, such a loose expression cannot be understood to mean anything different from proof arising from possession according to the deed, or some other proof strictly legal. The proof in Dutchess county, such as it was, was completely coram non judice, as far as it concerns the subject matter now in controversy. Indeed, it does not appear that the proof in Dutchess was authorized in any case, or for

any purpose whatsoever. It was even there a nullity, if I understand the statute by virtue of which it was said to be taken. But admitting such proof was equivalent to a probate of a will, a regular probate could not have been admitted. It never has been admitted, unless a copy, where the original will was proved to have been lost; nor even then, unless accompanied with other circumstantial proof, although the will had grown to be ancient. (1 Ld. Raym, 731, 732.)

I am of opinion, that the admission of the will was properly ruled.

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

New trial granted.(a)(b)

(a) (Old nole.] See Jackson, ex dem. Burhans v. Blanshan, (3 Johns. Rep. 292.) Peake's Ev. 3d ed. 110, 112. 5 Term Rep. 259.

(b) Messrs. Cowen & Hill have made a large collection of cases upon the evidence of ancient deeds. (Notes to 1 Phill. Ev. p. 1310, et seq., note 903.) In reference to the principal case, they observe, “A full corresponding possession is not the only corroboration which will allow the instrument to be read without proof of execution, though there are several dicta which look that way. (See Jackson, er dem. Burhans v. Blanshan, 3 John. Rep. 292, 297, 8, per Kent, C. J., who, iu delivering the prevailing opinion, reiterated what was said by him, dissenting, in Jackson, er dem. Lewis v. Laroway, 3 John. Cas. 289, et seq. See also per Savage, C. J., in Jackson, er dem. Bradt v. Brooks, 8 Wend. 426, 431 ; Middleton v. Mass, 2 Nott & M'Cord, 55, per Johnson, J.; Waldron v. Tuttle, 4 N. H. Rep. 377; M'Gennis v. Alli.

10 Ser. & Raw. 199 ; Arnold v. Gorr, 1 Raw. 223 ; Healy v. Moul, 5 Ser. & Rawle, 181.) Our author, (Mr. Phillips, 1 Ev. p. 477,) seems to have laid down the rule in the true spirit of the English adjudications; and it obviously admits of this alternative, viz., that if possession has gone along with the deed, so as to furnish a presumption of its authenticity from that source alone, other circumstances may be resorted to. In Carhampton's lessee v.

80n,

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