Van Buren v. Cockburn , 14 Barb. 118 ( 1852 )

By the Court, Parker, J.

I think the judge was right in holding that Luke K. Cockburn was not a necessary party to the action. It was not claimed that he was in possession of the land in controversy. On the contrary, it was admitted that the defendants were in possession. It is not necessary to decide whether he might properly have been made a party defendant, on the ground that he claimed an interest in the premises, but the question is whether he was a necessary party. That objection was properly overruled.

The second objection was that the court erred in permitting the witness, Mr. Macauley, to state what Warner testified on a former trial, for the reason that he could not make such statement from his recollection and without reference to his minutes taken on the former trial. This point has been recently settled by the court of appeals, in Huff v. Bennett, decided in April last, and not yet reported. Such evidence was there decided to be admissible.

But the principal question arises on the charge of the judge. The judge declined to charge that the presumption was in favor of the due execution of the will, and also that the presumption was that certain alterations and substitutions, if made, were made before the execution of the will; and the defendant excepted to each refusal.

Standing alone, and unexplained by what the judge did charge, these exceptions might seem to be well taken. But a reference to the charge, as set forth in the bill of exceptions, shows that the defendant has no cause of complaint for such refusals. The judge refused to charge on the bare proposition presented, but in his charge stated every thing which the defendant had a right to demand. The judge charged, among other things, that “ the statute prescribed certain requisites in relation to the execution of wills; all of which must be fully complied with, to make a valid will. When all the requisites have been complied with, the presumption of law is that the instrument thus executed is the will. This presumption may be overcome by evidence showing that the will has been altered, or that new sheets have been substituted : such evidence may be intrinsic or extrinsic. The paper itself may furnish such evidence. It may also be found by other evidence, positive or circumstantial. In this case the eviclence is chiefly intrinsic.” The rule as to the presumption was thus correctly stated, and in a subsequent part of the charge the judge said, “ The great question is whether this substitution was made before or after the 10th of August, when the will was executed.” The question was thus submitted to the jury.

The judge further 'charged, that “ although ordinarily, when all the requisites of the statute have been complied with in the execution of the will, the presumption of law is that the instrument produced is the will thus executed; yet when it is made to appear that the will has been altered or changed, the presumption that it is the same paper which was executed disappears.” To the last clause the defendant also excepted. I think this part of the charge, when applied to the instrument then before the court, was clearly right. That instrument was presented to us on the argument, and bears upon its face very strong evidence that it was altered after its execution. Several of the indicia lead directly towards that conclusion. The alterations were of the most material parts of the will. The substituted parts were on paper of diflerent color and size from the sheet executed, and written with diflerent ink. The numbering of the sheets had been changed, though the former numbers could still be discovered, and there were erasures and alterations on the last sheet, not noted. These are only part of the evidence of subsequent alteration, apparent on the face of the instrument. It seems to me there was good reason for calling on the party producing the instrument, to explain the suspicious circumstances. In regard to a deed, the rule is well settled that, where an erasure or interlineation appears in a material part of a deed, of which no notice is taken at the time of the execution, it is a suspicious circumstance, which requires some explanation on the part of the party producing it, and it is the province of the jury to determine whether the explanation given is satisfactory. ()Jackson v. Jacoby, 9 Cowen, 124. Jackson v. Osborn, 2 Wend. 555. 1 Phil. Ev. 405. Barrington v. Bank of Washington, 4 Serg. & Rawle, 405.)

If I am right in this conclusion, then the judge was correct in charging further, that it was a simple question of fact to be deelded by the jury, upon the evidence before them, uncontrolled and unembarrassed by any presumption one way or the other, whether the paper produced was the same document executed on the 10th day of August, 1846, and the exception to this portion of the charge is also unavailable.

[Albany General Term, September 6, 1852.

Parker, Wright and Harris, Justices.]

I think there was no error committed on the trial, and that the judgment rendered at .the circuit should be affirmed.

Judgment affirmed.