tor by another person, an attorney at law. The testator died April 23, 1902, in Montgomery county, Ind., at the age of 87 years and 2 months. There was evidence which the trial court regarded as sufficiently trac ing this will to the possession of the testator a short time before his death. This will was not found after his death, although there was diligent search for a will. There was no evidence directly showing its destruction, or what became of it. There was evidence having a tendency to show a favorable disposition of the testator toward the beneficiaries in the will as found by the court and stated in the judgment, and an unfavorable disposition toward the wife of Mr. Hughes; and there was evidence relating to the question of the soundness of the testator's mind, at and after the time when the will so came into his possession shortly before his death, from which the court concluded that he was then and thereafter until his death of unsound mind. Charles W. Hughes, mentioned in the finding, was not a relative of the testator, but had lived with him from early childhood, had married, and still continued with his wife and children to live with the testator in the residence owned by the latter, who left no children and no widow surviving him; his wife having died in 1893. The other appellees are kindred of the deceased wife of the testator; and the appellants, except the Methodist Episcopal Church, are kindred of the testator. We will assume for the purposes of this decision that, if the contents of the will as so found were sufficiently proved by competent evidence, the evidence as a whole was sufficient for the establishing of this will, and that, upon such hypothesis, if any errors occurred in the admission of the evidence, they were not of sufficient importance to warrant a reversal of the judgment. It will be understood that we direct our decision to the question as to the proof of the provisions of the will. No copy of the will was shown, and no draft or written direction from the testator was introduced.

Mr. Bachelor, an attorney at law, testified that he wrote the will for the testator. He could not give the date nearer than within two months of the writing of the will, which was written in the attorney's office in the presence of the testator. The directions of the testator to the draftsman were oral. He testified: "I wrote in the will that his just debts should first be paid by his executor; and next, that he willed and devised his place where he now lives, being all the real estate that he owned, to C. W. Hughes, to have and to hold during his lifetime; that he may have the right to dispose or sell the same at any time he may see fit; in case the same was not disposed of by the said C. W. Hughes during his lifetime, then at the death of said C. W. Hughes said real estate should go to the children of said C. W. Hughes; provided, further, that the said C. W. Hughes

was not to bring in any claim against the testator's estate after his death for services and support rendered. The next provision in the will was that, after paying the foregoing legacy, he willed $500 to Mary Standiford and $500 to Eliza Standiford. The next item provided that, after paying the foregoing legacies in full, he willed $500-$250 to one Elliott woman and $250 to another Elliott woman. I do not remember their first names. I think, though, it was Sallie and Catherine. After paying the foregoing legacies, in the next item he willed $250 to a woman by the name of Patterson; and the next item he willed, after the paying of the foregoing legacies, I think it was $50 to the Methodist Episcopal Church; and the next item, after paying all the foregoing legacies, if there was any property left, the remainder should go to C. W. Hughes. The next item, I think it was, provided that James Standiford should be the executor of this his last will and testament. The starting out of the will ran in the usual form-that he executed this his last will and testament and hereby revoked all former wills by him made. That was in the preamble of the will. That is about the word and substance of the contents of the will, as near as I can come to it." He testified that after the execution of the will he handed it to Mr. Wilson and never saw it afterwards. He had no memorandum with which to refresh his memory as to the contents of the will or the conversation with the testator. The court caused the record to show that the court called Charles W. Hughes as a witness, under section 510, Burns' Anu. St. 1901, and asked him to state whether or not, after October 1, 1897, he read a paper purporting to be the will of James L. Wil

son.

The witness answered that he did. The court by another question elicited the statement that the will was signed as witnesses by the persons who had witnessed the execution of the will in question. The court to the witness: "If that will contained any provisions other than the provisions relative to yourself, state what they were. A. Yes. it gave Eliza Standiford and Mary, her daughter; first gave Eliza Standiford $500 and Mary Standiford, her daughter, $500; then, after the residue-I can't use the legal language, but the meaning was, after that was paid, there was Sallie Elliott the wife of James Elliott, and Catherine Elliott, was to get $250 each. Then, if there was anything left, Armilda Patterson, of Iowa. was to get $150 and the Methodist Church $150. Then if there was any residue-" The Court: "I don't want anything concerning yourself." Witness: "You want to know who the executors were?" The Court: "No, that is all I want to ask you."

It is claimed on behalf of the appellants that there was no evidence of the provisions of the will other than that furnished by the testimony of these two witnesses. The appellees claim that the testimony of Mary

E. Ragstle, Henry Miller, and Paul P. McGinnis supplied the additional needed evidence as to the provision of the will for Charles W. Hughes. Mary E. Ragstle had known the testator for many years, and at various times had worked for his family at his home. She testified concerning a conversation which she had with the testator, when she was staying with his family, about September, 1900; that he said that if a man and wife would live together for some time and accumulate "a right smart" he always felt that it was right for the wife's people to have a part. "He talked about this Mary Standiford so much having part. I said: 'What are you going to do for Will. Ain't you done nothing for him?' He said: 'O, yes! I intend for him to have the home place. I have fixed it for him to have the home place.' Question: "Do you know .what home place he alluded to?" Answer: "It was where I was staying then. He was in the home place." The witness testified that the testator had many conversations with her after that respecting his leaving his property; that she did not pay any attention to it, to recollect it exactly; that she recollected it, but could not call it over exactly, word for word. The court appears from the record to have admitted this evidence as bearing upon the question of insanity, expressing doubt as to its competency as evidence of the contents of the will. Henry Miller, a nephew of Mr. Wilson's deceased wife, testified that he had a conversation with the testator since the year 1897; that the testator remarked that where there was a man and his wife, the only ones in the family, where the woman helped to make the property, he believed the property ought to be divided between the man's heirs, or kinfolks, and the kinfolks of his wife. He said it never looked fair that the man's kin should have all of it, and the other side none. The witness said he had two conversations with the testator, both to the same effect; that he never referred to Mr. Hughes. Paul P. McGinnis testified concerning a conversation in 1898 or 1899 between him and the testator at the home of the witness, "in which it came up about Mr. Hughes and also his wife, and he stated that Will had been kind of reckless, like some of the rest of the young fellows; that he did not suppose he was any worse than other young fellows; that he intended to do the right thing with Will, but did not like his wife much."

Upon the question whether evidence of the declarations of an alleged testator, made after the execution of the will, as to its contents, the will not being produced, are admissible for the purpose of proving its contents, there has been much diversity of opinion. In Doe de Shallcross v. Palmer, 16 Q. B. 747, it was said that such evidence was not admissible for such purpose, and in the

subsequent case of Quick v. Quick, 10 L. T. Rep. (N. S.) 619, such evidence for such purpose was held not admissible. In Sugden v. Lord St. Leonards, 34 L. T. Rep. (N. S.) 372, what was referred to as the dictum of Lord Campbell in Doe v. Palmer was disapproved, and Quick v. Quick was overruled. It is to be noticed that in Sugden v. St. Leonards the paper admitted to probate as the will was a paper drawn up by Miss Sugden from her own knowledge of the contents of the will, as she testified, and though it was shown that in some minor respects, as to which she could not recollect, the paper was deficient, nothing else than the contents of this paper was established as the will or a part thereof; that the declarations of the testator made after the execution of the will were expressly held by Cockburn, C. J., delivering the principal opinion, to be admissible as corroborative evidence, in confirmation of Miss Sugden's statement, which it was said did not need any confirmation; and Mellish, L. J., stated that, having read through the judgment from which the appeal was taken, he considered (as did also Jessel, M. R.), that the president of the Probate Division did not rely upon such evidence at all, and in the view of Mellish, L. J., it was not necessary to consider the question whether the subsequent declarations of the testator were admissible. Jessel, M. R., regarded the question as being whether the evidence of the person who had seen the will could be confirmed or corroborated by declarations of the testator. He said of such evidence, relating to a time before the execution of the will, that it is not strictly evidence of the contents of the instrument, because it is simply evidence of the intention of the person who afterward executes the instrument. "It is therefore," he said, "simply evidence of probability—no doubt of a high degree of probability in some cases, and of a low degree of probability in others." He expressed the opinion that, irrespective of the posttestamentary declarations of the testator, there would be no ground for saying that there was not sufficient evidence to sustain the proof of the will in question. Mellish, L. J., also said: "When a doubt is thrown on the correctness of evidence which has been given as to the contents of a will, the testator's declarations as to what he intended to put in his will, made either contemporaneously with or prior to the making of his will, are obviously evidence which corroborates the testimony as to what is contained in his will. But to my mind they do not of themselves prove what were the contents of the will. They corroborate the other evidence which has been given of the contents of the will. * But a declaration after he has made his will, in which he states what the contents of his will are, is not a statement of anything which is passing in his mind at the time; but it is simply a statement of a fact which took place, no doubt within his knowledge, and therefore you cannot admit it unless you

bring it within some of the exceptions to the general rule that hearsay evidence is not admissible to prove a fact which is stated in the declaration."

When the necessities of the case of Sugden v. St. Leonards, as stated by the judges participating, are examined, and the use therein made of the posttestamentary declarations is considered, it must be admitted that the broad and general statement concerning such declarations in the opinion of the Lord Chief Justice, often referred to and repeated by courts and text-writers, was not necessary to the decision, and therefore is the dictum of a very learned and eminent judge, upon which doubt has been cast, not only by Mellish, L. J., in that case, but also by all the eminent judges delivering opinions in the House of Lords in Woodward v. Goulstone, L. R. 11 App. Cas. 469; and the matter was left by the last-mentioned case an open question. The Lord Chancellor said: "As far as I am concerned, I desire to guard against its being supposed that I hold these posttestamentary declarations are admissible." Lord Fitzgerald considered Sugden v. St. Leonards as having reached the very verge of the law; and Lord Blackburn, speaking of that case, said: "Very considerable reasons have been given for doubting some of the propositions and doctrines laid down there, and they may be shaken to some extent." The confidence in the reliability of such statements of a testator after the making of his will, expressed by the very learned Lord Chief Justice in Sugden v. St. Leonards, supposed to be justifiable perhaps in the particular case by reason of the esteem entertained by the members of the court for the testator, the first Baron St. Leonards, and Miss Sugden, does not appear to be shared generally by courts as a rule for guidance. In the later opinion of Lord Herschell, L. C., in the House of Lords, in the case of Woodward v. Goulstone, supra, it is said: "I think that common experience shows that persons frequently allege that they have given benefits and made provisions for others after their death when those statements are absolutely without foundation, and are proved conclusively by the production of undoubted testamentary dispositions to have had no foundation. Nothing can be more dangerous, I think, than to accept as any evidence, to carry with it weight, of the contents of a will, the evidence of persons of statements made to them of bounties which they are to receive after the death of the person who made those statements." Very many expressions to like effect, and scarcely any to the contrary, may be found in the reports and text-books.

In the important and carefully considered opinion in McDonald v. McDonald, 142 Ind. 55, 83, 41 N. E. 336, 345, it is said by the learned judge: "That the statements or declarations of a testator may be received, in the absence of evidence of a higher character, to prove the contents or provisions of a lost

or destroyed will, finds support in certain English and American authorities cited." We have been interested in examining the decided cases thus cited, to one of which, Sugden v. St. Leonards, we have already referred at some length. For the purpose of illustrating the subject, though at the expense of some space, we will briefly notice the other cases. Gould v. Lakes, L. R. 6 P. D. 1, was held to be governed by the authority of Sugden v. St. Leonards. The will was in existence and was produced. The question was as to whether the several pieces of paper were brought together before the signing, and the evidence in question was held to be admissible to show that it was the intention of the testator to make dispositions in conformity with those found upon the several sheets. In Burls v. Burls, L. R. 1 P. & D. 472, a supposed draft of a lost will was proposed for probate. A number of witnesses who had read the will. testified as to its contents, and it was held that the court should take the parol evidence side by side with the draft and extract the substance of the will. There was no question concerning posttestamentary oral declarations.

In Goods of Barber, L. R. 1 P. & D. 267, the contents of the will were shown by a draft and the testimony of witnesses who had seen the will or heard it read, proving that the will corresponded with the proposed draft. In Johnson v. Lyford, L. R. 1 P. & D. 546, evidence of verbal and written statements of the testator made in and about the making of his will and accompanying acts done by him concerning the same subjects were held admissible as evidence of the contents of the will, which was lost; and the court pronounced intestacy. Quick v. Quick, supra, had been cited, against the evidence, but the court did not seem to regard it as in point. In Battyll v. Lyles, 4 Jur. (N. S.) 718, the sole question was: Did any one other than the deceased knowingly destroy her last will? In Finch v. Finch, L. R. 1 P. & D. 371, the question for decision related to the question of revocation. The contents were proved by a draft proved to be in the same words as the will by an attesting witness, a law stationer, who prepared the will. In Davis v. Davis, 2 Addams, 223, there was evidence of the contents of the lost or destroyed codicil from a witness who had actually read it. In Keen v. Keen, L. R. 3 P. & D. 105, the only question raised was that of revocation-whether the will was destroyed by the testator with the intention of revoking it.

In re Page, 118 Ill. 576, 8 N. E. 852, 59 Am. Rep. 395, was a case where the attorney who drew up the lost will gave a copy of it in evidence, and the question was said to be whether the presumption that the testator revoked it was overcome by the evidence. Evidence was introduced of posttestamentary declarations, some of which related to the provision made by the will, in agreement with the copy, and the court on appeal held upon the evidence that the will was not revoked or can

celed by the testator. In the course of the opinion it was said: "That the contents of a lost or destroyed will may be proved by the testimony of a single witness is settled in England since the decision in the great case of Sugden v. Lord St. Leonards, 17 Eng. (Moak's notes) 453. And like ruling has obtained in this country. Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130; * Sugden

v. St. Leonards, supra, also holds that declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss, admissible, not only to prove that it has not been canceled, but also as secondary evidence of its contents. It has been held otherwise in New York, but this in our opinion is the more reasonable ruling." It is to be observed that the use made in the Illinois case of the testator's declarations was upon the question of revocation. In a note

to this case in 59 Am. Rep. 399, reference is made to a statement in Schouler on Wills that declarations of the testator are admissible to show the contents of a lost will; and it is pointed out that all the American cases cited by Mr. Schouler in support of this statement are only to the effect that such declarations are admissible on the subject of revocation, among these American cases being Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322, one of the cases cited in McDonald v. McDonaid, supra.

In Hope's Appeal, 48 Mich. 518, 12 N. W. 682, which was an appeal from the probate of a will, Mr. Wood, testifying for contestants, swore to the drawing and execution of a second will (which could not be found), and to the surrounding circumstances, and to the fact that it contained a clause of revocation. It was said, of evidence offered by declarations of the testator shortly before his death, that if admitted it would not be weighty, but would have tended to corroborate Wood, and for that purpose was admissible. Besides, it was said that evidence of the same nature offered later by the other side tending against Wood's testimony was admitted, and the rulings on evidence, therefore, were irreconcilable. In re Estate of Lambie, 97 Mich. 49, 56 N. W. 223, was a case wherein it was held that the existence and contents of the lost will had been shown by the evidence of Francis Lambie, and that declarations of Mrs. Lambie (the testatrix) that she had changed her will previously made, and left all to her nephew when Francis should be through with it, corroborated such testimony, and there was no error in admitting them; citing Sugden v. Lord St Leonard, L. R. 1 P. & D. 154.

In Foster's Appeal, 87 Pa. 67, 30 Am. Rep. 340, the contents of the lost will were clearly and fully proved by the testimony of two witnesses, as well as by memoranda in the testator's handwriting. The decision related in part to the force of the evidence introduced to rebut the presumption of revocation arising from the fact that the will was known to be in possession of the testator

himself, and that it could not be found after his death; and it was also decided that the contents of the lost will may be proved by parol evidence. In Conoly v. Gayle, 61 Ala. 116, a copy of the will was in evidence. In McBeth v. McBeth, 11 Ala. 596, it was decided, adversely to the ruling on the trial, that there was sufficient preliminary proof to permit the introduction of proof that a copy propounded was a substantial copy of the will. In Morris v. Swaney, 7 Heisk. (Tenn.) 591, testimony of witnesses who had heard the will read was held admissible as furnishing evidence of its contents, in the absence of better evidence. In Reel's Exr's v. Reel, 8 N. C. 248, 9 Am. Dec. 632, the declarations were held admissible tending to show that the testator, whose will was produced, believed its contents to be different, for the purpose of proving fraud in the writer of the will, one of the executors and principal divisees. In Howell v. Barden, 14 N. C. 442, the question related to proof of posttestamentary declarations to show that the will was obtained by fraud and undue influence. In Simms v. Simms, 27 N. C. 684, the question was whether a certain paper written in the handwriting of a decedent was deposited by him among his valuable papers with the intention that it should be his will.

In McDonald v. McDonald, supra, there was no decision as to what effect the posttestamentary statements would have in a case such as the one before us. That was a case to set aside what was alleged to be a pretended will of Senator Joseph E. McDonald. The contestants were the appellees. They were not attempting to have any alleged will established and admitted to probate. It was claimed by them that his true will had been suppressed and destroyed without the testator's knowledge or consent, and that certain statements made by the testator, after the execution of the will, concerning its provisions, not in agreement with the alleged will attacked, were admissible to rebut the presumption of revocation and to show that the contestants were interested in the estate as devisees and legatees; that being the capacity in which they sued. It was held that evidence of the declarations was admissible for the purpose for which, as claimed by the contestants, it was introduced; the court at the same time saying that it was settled by some of the authorities cited that such statements of the testator should be received as evidence with great caution, for the reason that they are sometimes made by him for the express purpose of misleading or satisfying curious friends or expectant relatives.

Our statute (section 2779, Burns' Ann. St. 1901) provides: "No will of any testator shall be allowed to be proven and established as lost or destroyed, unless the same shall be proven to have been in existence at the time of the death of the testator, or be shown

to have been destroyed in the lifetime of the testator without his consent, or otherwise fraudulently disposed of; nor unless the provisions shall be clearly proven by two witnesses, or by a correct copy and the testimony of one witness." A similar statute, with some minor differences not here important, was enacted as section 79 of our statute relating to wills contained in Rev. St. 1843, p. 500, pt. 2, c. 30. A similar statute was enacted in New York in 1830. See Rev. St. N. Y. 1852 (Denio & Tracy) vol. 2, p. 254, pt. 2, c. 6, tit. 1, § 88. Ann. Code, p. 1936, § 1865.

See,

also, Stevens'

In Harris v. Harris, 26 N. Y. 433, which was an action for partition of lands, where the provisions or contents of a will were proved distinctly by one witness, who drew it at the request of the testator, and who was one of the subscribing witnesses to it, it was said that before the Revised Statutes, in such an action, only such an amount and degree of evidence was required as to the contents of the will as was necessary to establish any other fact in the action; that is to say, proof of the facts in issue by a single witness. It was held that the statutory requirement of two witnesses, or one witness and a copy, only applied in the direct proceeding under the statute for the purpose of probate and record of a will alleged to have been lost or destroyed, and were not designed as a general rule of evidence in all cases and in all tribunals where the execution and validity of a will, lost or destroyed by accident or design, should come in question; that the legislative intention to effect so radical a change in the common law rules of evidence was not manifest. In Sheridan v. Houghton, 6 Abb. N. C. (N. Y.) 234, where the two witnesses did not concur in their testimony as to some of the provisions found to be established by the surrogate, it was held that there was such a discrepancy in the evidence that the will could not be regarded as proved by two witnesses as required by the statute. In McNally v. Brown, 5 Redf. Sur. (N. Y.) 372, it was regarded as not necessary that the witnesses should remember the exact language used by the testator, but that they must be able to testify at least to the substance of the whole will, so that it could be incorporated with the decree, and it was considered that the two witnesses should prove all the provisions of the will as probated; citing Sheridan v. Houghton, supra. In Hatch v. Sigman, 1 Dem. Sur. (N. Y.) 519, it was said, with reference to the statute concerning declarations of the testator after the execution of the will alleged to have been lost, that while they are admissible it is only as a circumstance to be taken in connection with other proof tending to establish a certain fact; that it would be rendering the strict language of the statute negatory to say that declarations of the decedent, however lucid and precise they may

be, however minutely they may detail the facts occurring at the execution of the will, and however numerous they may be, will establish the execution of the will and also be tantamount to the "two credible witnesses" made an indispensable necessity by the statute; that the declarations of deceased persons are always a dangerous kind of testimony and are received and scanned with the closes scrutiny, and in the usual run of cases triec in a Surrogate's Court, are not even admissible, except as bearing upon the testator's mental capacity; "and it would be a marvelous stretch of the judicial functions to say that the reiteration of these statements can galvanize them into the 'two credible witnesses' provided for by the statute."

In Colligan v. McKernan, 2 Dem. Sur. (N. Y.) 422, a will was propounded for probate, and the question was whether there was sufficient evidence to reject it upon the ground that it had been effectually revoked by a later will. It was shown in the opinion of the court that the statutory provisions as to the particular kind of proof required for “establishing" a will had no application as to the later will in such a case, and that it was not necessary, in such a case, that two witnesses should testify as to the contents of the later will, nor was it necessary to show that it was still in existence at the testator's death, or that, if not then in existence, it had been fraudulently destroyed in his lifetime. It was held that parol evidence was admissible in such a case to show that a will was executed after the one propounded and that the later will contained a clause of revocation, and that, notwithstanding the statute, the existence of the revoking clause might be proved by the testimony of a single witness. The evidence in that case as to the existence of a revoking clause was held to be merely hearsay. See, also, Collyer v. Collyer, 4 Dem. Sur. (N. Y.) 53, 59. The case last cited was a proceeding to prove a will as lost or destroyed. Concerning the evidence of the provisions of the will, the court, after referring to the statute, said: "Mr. Parsons," a counselor at law, "produced the draft of the will made by him, which he substantially testifies was correctly engrossed by his clerk, and, so engrossed, was executed by the decedent. Hence that draft may be treated as a substitute for one of the two witnesses required by the statute. In no other way does he prove the provisions of the will. It is true, they were simple, devising and bequeathing all her estate, real and personal, to her brother George B. Collyer, the proponent, but that will not warrant the dispensing with the one witness which the statute requires besides the draft. If it did, then it would seem that, in all cases, the person verifying the draft or copy (and it would not be evidence without such verification), by the very act of testifying to its correctness, would thereby become the needed witness. Such cannot fairly be considered the design of the provision. Another witness was re