The facts to be proved by the subscribing witnesses are, that the devisor signed the will, or that another person signed it in his presence and by his express direction, and that the witness and another person attested and subscribed it in the presence of the testator. (g) The Revised Statutes require that every last will and testament of real or personal property, shall be executed and attested as follows: 1. It shall be subscribed by the testator at the end of the will; 2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses; 3. The testator, at the time of making such subscription, or of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament; 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.

The witnesses in any will shall write, opposite to their names, their respective places of residence; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions shall forfeit $50, to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated, on that account, from testifying respecting the execution of such will. (h)

(g) 1 Phil Ev., 497.

(h) 2 R. S., 63, § 40, 41; 3 id., 7th ed., 2285

the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same as hereinafter directed. (Id., 405, § 68.) To whom to be delivered.]—Such will shall be delivered only,

1. To the testator in person; or

2. Upon his written order, duly proved by the oath of a subscribing witness; or 3. After his death, to the person named in the indorsement on the wrapper of such will, if any such indorsement be made thereon; or

4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a surrogate, then to the surrogate of the county. (Id., § 69.)

When to be opened by surrogate.]-If such will shall have been deposited with a surrogate, or shall have been deposited with him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the contents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court. (Id., §70.)

The term "will," as used in this chapter, shall include all codicils,

as well as wills. (¿)

These facts must of course all be proved by the subscrib

ing witness, *in order to establish the validity of a will of [*418 ] real estate. As regards wills of personalty, we have already seen that the mere production of the probate, under the seal of the proper court, is in general conclusive, and will suffice without further proof. (j)

A witness interested at the time of examination, is not competent to prove that he was not so at the time when he attested. (k) But the witness becoming incompetent afterwards, will not vitiate the will ; but the will may be proved by the other attesting witnesses, or by showing his handwriting, or by other secondary evidence. (7) And where the attesting witness has become incompetent, the party may resort directly to other proof. (m) The competency of the witnesses must be considered with reference to the time of attestation. (n)

If a subscribing witness is abroad, his handwriting may be proved in the case of a will, in the same manner as that of an absent witness to a deed. (0) The fact being once established which lets in the proof of handwriting, a single witness may prove the handwriting of all. (p) The handwriting of all the witnesses must be proved, unless such proof be shown to be beyond the reach of the party. (q)

If a subscribing witness should deny the execution of the will, he may be contradicted, as to that fact, by another subscribing witness. And even if they all swear that the will was not duly executed, the devisee would be allowed to go into circumstantial evidence to prove the due execution. (r) But where the witnesses either so deny or fail to prove their attestation, the counter proof must be very clear to support the will. (s)

It is a general rule, that a paper appearing, on its face, to be an original will thirty years old, may be received without the usual proof by witnesses, or accounting for their absence, or showing their or the testator's handwriting. (t) In such a case of apparent age, the law draws the inference that the ordinary proof is all lost, and lets in such grounds of presumption as are more remote, but of a

more enduring character. This presumption is conclusive; and though the witnesses appear to be alive and within reach of process, that will not exclude the inferior proof. (u) The will which comes to prove itself, however, must appear on its face to have been regularly executed. (v) But among the marks of regularity, it is not essential that the attestation clause should mention the formalities of execution; as that the witnesses subscribed in the presence of the testator. (w) (18)

(u) 8 Barn. & Cress., 22. 3 Car. & P., 402. 4 Wend., 277, 282. 3 John., 292.

(18) DOCUMENTARY EVIDENCE.

v) 11 Wend., 603. (w) 4 id., 282.

Official certificates.]-Where the officer, to whom the legal custody of a paper belongs, certifies, under his hand and official seal, that he has made diligent examination, in his office, for the paper, and that it can not be found, the certificate is presumptive evidence of the fact so certified, as if the officer personally testified to the same. (Code Civ. Pro., § 921.)

Certificate or affidavit on file.]-Where a public officer is required, or authorized, by special provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him in the course of his official duty; and to file or deposit it in a public office of the state; the certificate or affidavit so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law. (Id., § 922.)

Notary's certificate; when evidence.]-The certificate of a notary public of the state, under his hand and seal of office, of the presentment by him, for acceptance or payment, or of the protest for non-acceptance or non-payment, of a promissory note or bill of exchange, or of the service of notice thereof on a party to the note or bill, specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the post office nearest thereto; is presumptive evidence of the facts certified, unless the party against whom it is offered, has served upon the adverse party, with his pleading, or within ten days after joinder of an issue of fact, an original affidavit, to the effect that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit, within the meaning of this section. (Id., § 923, as amended by Laws of 1877, ch. 416.)

Protest and memorandum.]—In case of the death or insanity of a notary public of the state, or of his absence or removal, so that his personal attendance, or his testimony, can not be procured, in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payment therein stated; and a note or memorandum, personally made and signed by him, at the foot of a protest, or in a regular register of official acts, kept by him, is presumptive evidence that a notice of non-acceptance or non-payment, was sent or delivered, at the time, and in the manner, stated in the note or memorandum. (Id., § 924.)

Proof of presentment, etc., of foreign bills.]—Proof of the presentment, for acceptance or payment, of a promissory note or bill of exchange, payable in another state or in a territory, or foreign country, or of a protest of the note or bill, for non-acceptance or non-payment, or of the service of notice thereof on a party to the note or bill, may be made in any manner authorized by the laws of the state, territory or country where it was payable. (Id., § 925.)

Affidavit of printer, etc.]—The affidavit of the printer or publisher of a newspaper, published within the state, or of his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the state to be published in that newspaper, annexed to a printed copy of the notice, etc., may be read in evidence; and is presumptive evidence of the publication, and also of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case where the affidavit is required,

*CHAPTER III.

PAROL EVIDENCE.

1. IN WHAT CASES ADMISSIBLE. 2. COMPETENCY OF WITNESSES. 3. CREDIBILITY OF WITNESSES. 4. EXAMINATION OF WITNESSES.

5. COMPELLING ATTENDANCE OF WITNESSES.

6. THEIR FEES AND EXPENSES.

7. PRIVILEGE OF WITNESSES FROM ARREST.

1. In what cases admissible.

[*419]

PAROL evidence is inferior to written evidence, and can not, in general, be received instead of, nor be adduced in contradiction to

by law, to be filed, unless it has been duly filed; or to a case where the mode of proving a publication is otherwise specially prescribed by law. (Id., § 926, as amended by Laws of 1877, ch. 416.)

Affidavit of service of notice.]—Where it is necessary upon the trial of an action, to prove the service of a notice, an affidavit, showing the service to have been made by the person making the affidavit, is presumptive evidence of the service, upon first proving that he is dead or insane, or that his personal attendance can not be compelled, with due diligence. (Id., § 927.)

Marriage certificate.]-An original certificate of a marriage, within the state, made by the minister or magistrate by whom it was solemnized; the original entry thereof, made, pursuant to law, in the office of the clerk of a city or a town within the state; or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. (Id., § 928, as amended by L. of 1879, ch. 542.)

Book of foreign corporation.]—Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may be used for that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. (Id., § 929.)

Copy, when evidence.]-If an original book is not produced at the trial, as prescribed in the last section, a copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with the like effect as the original book; provided that the party intending to use the copy gives the adverse party at least ten days' notice of his intention, specifying briefly the nature of the evidence proposed to be given. But this and the next section do not apply, where the foreign corporation is a party to the action, and seeks to prove its own act or transaction, in its own behalf. (Id., § 930.)

The copy must be verified, by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has examined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct; that he made it, or compared it with the original book; and that he then knew that the original book, so copied, or containing the entry, was the book of the corporation; or that it was then acknowledged to him to be such by an officer or receiver of the corporation, or by a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where, and in whose custody, the original was then kept. (Id., § 931.)

Papers deposited for safe keeping.]-The clerk of every county in this state, and the register of deeds in the city and county of New York, upon being paid the fees

written evidence; though it tend to show the real intention of the parties; (a) nor to show the invariable usage of trade; (b) or custom of the country; (c) in opposition to the terms of a written instrument. But a latent ambiguity may be explained; that is, where upon the face of the instrument everything seems right and clear till the proof of some fact renders the meaning uncertain; and then the law permits the doubt to be removed by evidence of a like kind; as where one devised to her cousin C. J., and there were two of that name. (d) So, where from the terms of a deed the intention as to its nature is equivocal, evidence is admissible to show the intent and also that some act was done further than that stated in the deed, though forming part of the same transaction. (e) show that a written contract, purporting to be made between B., was in fact made by B. as agent for a third person. (ƒ) But a patent ambiguity, viz., that which is apparent on the face of the instrument, can not be so explained. (g)

So, to

A. and

Parol evidence can not be admitted to contradict the terms of a deed; as to show that a lessee is to pay a given sum to the ground landlord, where the lease stipulates for the payment of a sum certain to the lessor. (1) Nor to alter the legal construction of an instrument; () as where no mention is made in an agreement when it is to take effect, the law adds the time, viz., immediately, to show the contrary. () Where no consideration is expressed in an

[* 420] and parol evidence is not admissible

(a) 5 Co., 26.

(b) 6 T. R, 320.

(c) 2 Barn. & Ald., 746.

(d) Peake's Ev., 112.

(e) 8 T R., 379 1 Phil. Ev., 544.

(ƒ) 7 Taunt, 785 1 Phil. Ev., 542.

(g) Matt. Dig., 123.

(h) Peake's Ev., 122.

(i) 3 Camp., 426. 5 Barn. & Cress., 108 1 Maule & Sel., 21, 147

(k) 8 Dow. & Ry., 548. 5 Barn. & Cress., 108, S. C.

allowed therefor by law, shall receive and deposit in their offices, respectively, any deeds, conveyances, wills or other papers or documents, which any person shall offer to them for that purpose; and shall give to such person a written receipt therefor. (2 R. S., 404, § 63; 3 id., 7th ed., 2389.)

How to be indorsed and kept.]-Such instruments, papers and documents shall be properly indorsed, so as to indicate their general nature and the names of the parties thereto, shall be filed by the officer receiving the same, stating the time when received, and shall be deposited and kept by him and his successors in office, with his official papers, in some place separate and distinct from such papers. (Id., § 64.) Not to be delivered out, etc.]-The instruments, papers and documents so received and deposited shall not be withdrawn from such office, except on the order of some court of record, for the purpose of being read in evidence in such court, and then to be returned to such office, nor shall they be delivered without such order, to any person, unless upon the written order of the person or persons who delivered the same, or their executors or administrators. (Id., § 65.)

May be examined publicly.]—Such instruments, papers and documents, so deposited, shall be open to the examination of any person desiring the same, upon payment of the fees allowed by law. (Id., § 66.)