The opinion
Curia, per
Suthehi.aNd, J.
’The judge nonsuited the plaintiff, on the ground that there- was not sufficient evidence of the identy of the will drawn by Marcy in 1816, and proved by him and Mallary and Lockwood, and that seen by Mrs. Ayres in the desk of the testator, in March, 1822: that parol evidence of the contents of the will drawn by Marcy, could not be received ; inasmuch as there was no evidence of its existence subsequent to July, 1821, when Lockwood drew a codicil for the testator-, which, after it was, duly executed, was attached to the will, and both delivered by him to the testator.
There certainly was evidence enough upon this point to go to the jury ; and I think the learned judge erred in not submitting it to their determination. It was a question of fact, which it was their peculiar province to decide.
Whether the will of the testator was among the papers which Mrs. Ayres testified that her father burned in March, 1822, before he went to Westchester, should also, I think, have been submitted to the jury. The evidence upon that point, is of such a character, that we should not disturb any conclusion to which the jury might have come.
The declarations of the testator during his last sickness, as to the existence of his wrill, and the place where it would be found, were incompetent evidence, and were properly rejected by the judge. This point w-as decided in Dan v. Brown, (4 Cowen, 490,) inrelationto this very will. (And vid. 3 Barnw. & Alders. 489. 2 John. 31 . 2 Phil. Ev. 197, and the cases there cited.)
It was also decided in Dan v. Brown, that it was not essential to the due proof of the will, that the name of the third witness should be ascertained ; the fact that it was attested by three witnesses, having been established.
*383 Assuming the execution of the will, and its existence at the time of the testator’s death, to have been established ; the evidence of its subsequent loss, or destruction, was sufficient to let in parol proof of its contents. Diligent search was shown to have been made, where it was most likely to be found ; in the desk of the testator, where he kept his papers, at his usual place of residence. This was •prima facie sufficient. (4 Cowen, 491. 12 John. 192 .)
On these grounds, a new trial must be granted, with costs to abide the event.
New trial granted.