Rumsey, J.:
This appeal is taken from the decree of the surrogate refusing to admit to probate the will of Rachel L. Kennedy which was pro? pounded as a lost will. The statute gives to the Surrogate’s Court jurisdiction to admit a lost or destroyed will to probate only in a case where judgment establishing the will could be rendered in the Supreme Court. (Code Civ. Proc. § 2621.) The authority of the Supreme Court to enter judgment in such a case is found in section 1865- of the Code, which expressly prescribes that a plaintiff who propounds such a will is not entitled to judgment unless the will was in existence at the time of the testator’s death or. was fraudulently destroyed in his lifetime.
The question simply is whether there was evidence from which it might be inferred that the will was in existence at the time of the death of Miss Kennedy. It appears that it was executed in March, 1895. It remained in Miss Kennedy’s possession from that time, and the paper itself was seen in her possession in January, 1898. It was kept in an envelope upon which were indorsed the words, “ will of Rachel L. Kennedy.” As late as the lltli of June, 1898, the envelope containing the will, a codicil upon which was indorsed, “ codicil of Rachel L. Kennedy,” and a letter addressed to her executors, were seen in a cedar closet off Miss Kennedy’s room in the place where she was accustomed to keep her papers, strapped [107]*107with an elastic band to a small tin box on one of the shelves. That seems to have been the last time either of these papers was seen. The fact that the will has not since been discovered raises the presumption that it was destroyed by Miss Kennedy with the intent of revoking it, and that presumption stands in the absence of proof by the proponents from which it may fairly be inferred that the will was in existence at the time of her death. (Collyer v. Collyer, 110 N. Y. 481; Hard v. Ashley, 88 Hun, 103.)
It is unnecessary here to consider the question whether the will might have been fraudulently destroyed in her lifetime, because there is nothing in the case from which any such fact can be inferred. So there remains simply the question whether the proponents produced sufficient evidence to warrant the surrogate in coming to the conclusion that the will was in existence at the time of the death of Miss Kennedy at York Cliffs on the 31st of July, 1898. Upon this question the evidence is exceedingly meagre. It appears that a day or so before Miss Kennedy left for York Cliffs she took some papers out of a tin box in the cedar closet and put them into a bag in her trunk. The bag itself was locked as well as the trunk, and she kept the keys of both. The bag was afterwards returned to New York and given to Van Rensselaer Kennedy, but there is no evidence that the papers which were in the bag when it was taken to York Cliffs were the same which were in it when it Avas brought back. Perhaps there is no inference that the will was in the bag at all, but whether it was or not the inference is not in favor of the proponents. There is no direct evidence as to what became of this will after June 11, 1898. Nor is there any evidence which fairly raises the presumption that the will being in existence at the time of the death of the testatrix Avas destroyed by any one afterwards. It is quite true that Van Rensselaer Kennedy and his secretary Duval had opportunities to destroy the will had either of them seen fit to do so, but that fact of itself is no evidence to establish a fraudulent destruction of the will. (Collyer v. Collyer, 110 N. Y. 481.) It Avould not be sufficient for that purpose even if Yan Rensselaer Kennedy had been interested in its destruction, but it is difficult to see how he had any such interest. The legacies under the will outside of the family amounted to about $215,000. A legacy of $100,000 Avas also given to the [108]*108daughter of Van Rensselaer Kennedy. The remainder - of the estate was divided between him and his aunt, who were the only heirs at law and next of kin. If the will was proved these legacies must, of course, have been paid, but the daughter of Van Rensselaer Kennedy wrould receive $100,000 and he, one-half of the estate after the payment of these legacies. If Miss Kennedy died intestate, Yan Rensselaer Kennedy would obtain one-half of the estate, and all the legacies, including the one of $100,000 to his daughter, would he lost to the legatees. The difference in the amount which would go to his family in the second ease is not large, and it is hardly credible that a man of standing and position would be induced to commit a crime of this kind for so small an amount as he would gain by the destruction of the will. Except for that unfounded suspicion there is nothing to overthrow the jdresumption which the law creates from the fact that the will was not found after the death of the testatrix. Upon all the evidence the conclusion of the surrogate is perfectly satisfactory.
The surrogate excluded certain testimony which it is claimed would have tended to show, if admitted, that Miss Kennedy did not destroy her will, but, on the contrary, supposed that it was in existence down to the time that she left for York Cliffs; and it is claimed by the proponents that if this evidence had been admitted it would have established by almost necessary inference not only that Miss Kennedy intended to die testate, but that she supposed that her will was in existence. This evidence was all excluded by the surrogate, and if it was competent-it is quite'clear that it might have led him to a different conclusion from the one he reached, and, therefore, it is necessary to determine whether the evidence should have been received and considered by him.
The proponents offered to show by Mrs. Pistor, a competent witness, that the day before Miss Kennedy started for York Cliffs she told her what she had done with certain property referred to in her will and what provision she had made for Alethea Platt, the sister of the witness. That evidence was objected to, and the exception to that ruling raises clearly the point made by the proponents: and the question is whether declarations made by the testatrix shortly before her death from which it could be inferred that her will was then in existence and that she intended to abide by the provisions [109]*109of it, were competent as tending to p>rove those facts. The admissibility of testimony of that kind has'been the subject of considerable discussion in this State. In the case of Jackson ex dem. Brown v. Betts (6 Cow. 377), which was an action of ejectment, the plaintiff claimed under a will that could not be found. As tending to prove the will the plaintiff offered in evidence the declarations of the testator made in articulo mortis as to the existence of the will and the place where it was to be found. These declarations were rejected, and it wras held by the Supreme Court that the ruling was proper, and that declarations of a testator during his last sickness as to the existence of the will and the place where it is to be found were incompetent. There was no discussion, but the case seems to have been decided upon the cases of Dan v. Brown (4 Cow. 483) and Jackson v. Kniffen (2 Johns. 31). An examination of these cases shows that in the first the precise question was decided as to the identical will. In the case cited the court ordered a new trial, which wTas had, and the report of the new trial is found in the 9th of Cowen, at page 208, but the question as to the competency of the declarations of a testator was not then before the court.
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Rumsey, J.:
This appeal is taken from the decree of the surrogate refusing to admit to probate the will of Rachel L. Kennedy which was pro? pounded as a lost will. The statute gives to the Surrogate’s Court jurisdiction to admit a lost or destroyed will to probate only in a case where judgment establishing the will could be rendered in the Supreme Court. (Code Civ. Proc. § 2621.) The authority of the Supreme Court to enter judgment in such a case is found in section 1865- of the Code, which expressly prescribes that a plaintiff who propounds such a will is not entitled to judgment unless the will was in existence at the time of the testator’s death or. was fraudulently destroyed in his lifetime.
The question simply is whether there was evidence from which it might be inferred that the will was in existence at the time of the death of Miss Kennedy. It appears that it was executed in March, 1895. It remained in Miss Kennedy’s possession from that time, and the paper itself was seen in her possession in January, 1898. It was kept in an envelope upon which were indorsed the words, “ will of Rachel L. Kennedy.” As late as the lltli of June, 1898, the envelope containing the will, a codicil upon which was indorsed, “ codicil of Rachel L. Kennedy,” and a letter addressed to her executors, were seen in a cedar closet off Miss Kennedy’s room in the place where she was accustomed to keep her papers, strapped [107]*107with an elastic band to a small tin box on one of the shelves. That seems to have been the last time either of these papers was seen. The fact that the will has not since been discovered raises the presumption that it was destroyed by Miss Kennedy with the intent of revoking it, and that presumption stands in the absence of proof by the proponents from which it may fairly be inferred that the will was in existence at the time of her death. (Collyer v. Collyer, 110 N. Y. 481; Hard v. Ashley, 88 Hun, 103.)
It is unnecessary here to consider the question whether the will might have been fraudulently destroyed in her lifetime, because there is nothing in the case from which any such fact can be inferred. So there remains simply the question whether the proponents produced sufficient evidence to warrant the surrogate in coming to the conclusion that the will was in existence at the time of the death of Miss Kennedy at York Cliffs on the 31st of July, 1898. Upon this question the evidence is exceedingly meagre. It appears that a day or so before Miss Kennedy left for York Cliffs she took some papers out of a tin box in the cedar closet and put them into a bag in her trunk. The bag itself was locked as well as the trunk, and she kept the keys of both. The bag was afterwards returned to New York and given to Van Rensselaer Kennedy, but there is no evidence that the papers which were in the bag when it was taken to York Cliffs were the same which were in it when it Avas brought back. Perhaps there is no inference that the will was in the bag at all, but whether it was or not the inference is not in favor of the proponents. There is no direct evidence as to what became of this will after June 11, 1898. Nor is there any evidence which fairly raises the presumption that the will being in existence at the time of the death of the testatrix Avas destroyed by any one afterwards. It is quite true that Van Rensselaer Kennedy and his secretary Duval had opportunities to destroy the will had either of them seen fit to do so, but that fact of itself is no evidence to establish a fraudulent destruction of the will. (Collyer v. Collyer, 110 N. Y. 481.) It Avould not be sufficient for that purpose even if Yan Rensselaer Kennedy had been interested in its destruction, but it is difficult to see how he had any such interest. The legacies under the will outside of the family amounted to about $215,000. A legacy of $100,000 Avas also given to the [108]*108daughter of Van Rensselaer Kennedy. The remainder - of the estate was divided between him and his aunt, who were the only heirs at law and next of kin. If the will was proved these legacies must, of course, have been paid, but the daughter of Van Rensselaer Kennedy wrould receive $100,000 and he, one-half of the estate after the payment of these legacies. If Miss Kennedy died intestate, Yan Rensselaer Kennedy would obtain one-half of the estate, and all the legacies, including the one of $100,000 to his daughter, would he lost to the legatees. The difference in the amount which would go to his family in the second ease is not large, and it is hardly credible that a man of standing and position would be induced to commit a crime of this kind for so small an amount as he would gain by the destruction of the will. Except for that unfounded suspicion there is nothing to overthrow the jdresumption which the law creates from the fact that the will was not found after the death of the testatrix. Upon all the evidence the conclusion of the surrogate is perfectly satisfactory.
The surrogate excluded certain testimony which it is claimed would have tended to show, if admitted, that Miss Kennedy did not destroy her will, but, on the contrary, supposed that it was in existence down to the time that she left for York Cliffs; and it is claimed by the proponents that if this evidence had been admitted it would have established by almost necessary inference not only that Miss Kennedy intended to die testate, but that she supposed that her will was in existence. This evidence was all excluded by the surrogate, and if it was competent-it is quite'clear that it might have led him to a different conclusion from the one he reached, and, therefore, it is necessary to determine whether the evidence should have been received and considered by him.
The proponents offered to show by Mrs. Pistor, a competent witness, that the day before Miss Kennedy started for York Cliffs she told her what she had done with certain property referred to in her will and what provision she had made for Alethea Platt, the sister of the witness. That evidence was objected to, and the exception to that ruling raises clearly the point made by the proponents: and the question is whether declarations made by the testatrix shortly before her death from which it could be inferred that her will was then in existence and that she intended to abide by the provisions [109]*109of it, were competent as tending to p>rove those facts. The admissibility of testimony of that kind has'been the subject of considerable discussion in this State. In the case of Jackson ex dem. Brown v. Betts (6 Cow. 377), which was an action of ejectment, the plaintiff claimed under a will that could not be found. As tending to prove the will the plaintiff offered in evidence the declarations of the testator made in articulo mortis as to the existence of the will and the place where it was to be found. These declarations were rejected, and it wras held by the Supreme Court that the ruling was proper, and that declarations of a testator during his last sickness as to the existence of the will and the place where it is to be found were incompetent. There was no discussion, but the case seems to have been decided upon the cases of Dan v. Brown (4 Cow. 483) and Jackson v. Kniffen (2 Johns. 31). An examination of these cases shows that in the first the precise question was decided as to the identical will. In the case cited the court ordered a new trial, which wTas had, and the report of the new trial is found in the 9th of Cowen, at page 208, but the question as to the competency of the declarations of a testator was not then before the court. From the judgment in that case a writ of error was taken to the Court of Errors (Betts v. Jackson ex dem. Brown, 6 Wend. 173). In delivering one of the opinions there reported the chancellor took occasion to consider the correctness of the conclusion of the Supreme Court when the case was first before it, to the effect that these declarations of a testator were properly excluded, and he disapproved of that ruling, but, as he says, the question was not before the Court of Errors, and, properly, he ought not to have expressed any opinion on the question, even if he had doubts as to the correctness of the ruling. The opinion he expressed is entitled to what weight 1ns standing as a judge gives to it, but it is not sufficient to overrule the determination of a court where the question was before it, especially as his opinion in that matter was not concurred in by the other judges. In the case of Waterman v. Whitney (11 N. Y. 157) an issue was tried at the Circuit in a proceeding to prove the will of Joshua Whitney. The declarations of the testator were offered in evidence to show how he had disposed of his property by will. The question for determination in that case was whether "these declarations were admissible where the will was contested [110]*110upon the ground that it was executed under undue influence and that the testator was of unsound mind. It was held that they were admissible in connection with other evidence tending to prove mental incapacity, so far as they bore upon that question, but for no other purpose. In examining the admissibility of such declarations, Judge Selden classifies the purposes for which such evidence may be offered, and he concluded that declarations showing a revocation of a will, unaccompanied by the act by which the will is revoked, were incompetent; and his conclusion, which seems to have been concurred in by the court with one exception, was that declarations of a testator as to the revocation of his will were admissible only when they accompanied some act with respect to the will, because they then became part of the res. gestae and characterized the act; but declarations unaccompanied by any act were not competent evidence. There is no distinction, so far as I can discover, between declarations offered to establish that a will has been revoked and declarations to establish that a will is in existence. In either case they are declarations of the testator as to a fact, and unless they accompany an act so as to characterize it and make it a part of the res gestee, they are not competent in my judgment. The question was examined in Matter of Marsh (45 Hun, 107). In that case Mr. Justice Bradley, delivering the opinion of the court, came to the conclusion, “with some hesitation,” .that such declarations were properly received, although he substantially admitted that in the case of Jackson v. Betts the Supreme Court had held to the contrary. But it seems to me that a careful examination of the reasoning of Judge Bradley in that case shows that it goes upon a false basis. He practically conceded that such declarations are only competent when they are part of the res gestes characterizing some act which they accompany, but he says-that in the case of the existence of a will which is presumed to be in the possession of the testator, the act accompanying the declarations is the possession of the will, and the declarations characterize that act. But the question is whether the will is in existence in the possession of the testator, and the admission of these declarations to prove that, the will is actually in existence amounts to admitting them to prove the very fact which must exist to make the declarations competent. It is hardly possible that it can be said that such declarations which [111]*111would be entirely incompetent unless the will was in existence, are competent to prove the very fact the existence of which makes them competent. The question was examined in the case of Hamersley v. Lockman (2 Dem. 524) and the learned surrogate of this county after a careful review of all the cases came to the conclusion that such declarations are not competent, and his opinion is a very satisfactory review of the cases in this State down to the time it was written. I think that upon the authorities there can be no doubt that such evidence is not competent in this State, and upon the principle suggested by the chancellor in Betts v. Jackson ex dem. Brown (6 Wend. 173) as well as in Waterman v. Whitney (sugpra)y which satisfactorily give the reasons why such declarations should not be admitted. This being the state of our own authorities, it is not necessary to examine the cases in other States.
In England, in the cáse of Sugden v. Lord St. Leonards (L. R. [1 Prob. Div.] 224), evidence of this nature was admitted, but so far as I can discover this case stands alone in that country and there are not a few dicta and other judgments from which it can be inferred that evidence of that nature is not considered competent upon principle. The conclusion which I have reached is that such evidence is not competent and that the surrogate did not err in rejecting it. Upon the whole case, therefore, the decree of the surrogate must be affirmed, with costs.
Yan Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.