GRAND ISLE, personal estate and that the testator was of sound mind when January, he executed it. 1842. It was also proved that, previous to the death of said Minkler et al. Minkler, said will was missing from the trunk where the same Ο. Estate of was deposited and kept, in the house of the testator, and that it had never since been found, though diligent search had been made for it. It was contended that, without evidence of an actual destruction of, or making away with, the will, by some other person, a conclusive presumption should be raised that it was destroyed by the testator, or by his direction, animo revocandi. But the condition of the testator and other circumstances being such as to satisfy the court that no such revocation had taken place, the paper so exhibited in evidence was found to be a true form and representation of the will, and the court decided that the said paper ought to be admitted to probate as and for the last will and testament of the said Peter Minkler; to which decision the appellees excepted. Allen & Platt, for appellees. The defendants contend that, in relation to the revocation of the will, (the same not being found at the time of the decease of the testator, nor since,) every presumption should have been made that it was revoked by the testator in his life time, and that nothing short of positive testimony should have been received to show its loss. Smalley & Adams and G. Harrington for appellants. 1. The evidence offered by the plaintiffs was properly admitted by the court. A will stands upon the same principle, in relation to the admission of parol evidence to prove its execution or contents, as any other written document. Harwood v. Goodright, 1 Cowp. 87, 3 Wilson, 497, in Com. Pleas. 2. Saund. Pl. & E. 539. 3 Starkie's Ev. 1681. 2. If the will was missing from the trunk where it was deposited and kept by the testator, and on diligent search has not yet been found, it is lost so far as these plaintiffs are concerned, and if it was not revoked by the testator, then it was not destroyed by him, as a destruction by him would be a revocation; and if it once existed, unless there be evidence of its having been cancelled or revoked by the testator, the January, 1842. law presumes its continued existence to the time of his GRAND ISLE. death. Jackson v. Betts, 9 Cowen, 222. Harwood v. Goodright, 3 Wils. 497. That circumstantial evidence may be admitted to rebut the presumption of a revocation, arising from the absence of the will, is a well settled rule in the English Ecclesiastical courts. 3 Starkie's Ev. 1715. Loxley v. Jackson, 1 Ecc. Rep. 375. Davis v. Davis, 2 Ecc. Rep. 277. Lilley v. Lilley, 5 Ecc. Rep. 68. The opinion of the court was delivered by Minkler et al. REDFIELD, J.-The issue in the court below was upon the legal existence of the will, at the decease of the testator. This was joined and tried by the court. They established the will upon such evidence as satisfied them that, although the will had been destroyed, by some one, before the decease of the testator, it was not with his privity. We have no doubt this is perfectly competent to be done. When a will is shown to have once existed, it then continues, unless revoked in one of the modes pointed out by statute, i. e. 'by the 'implication of law, or by some will, codicil, or other writing, 'executed in the same manner wills are required to be, or by 'burning, cancelling, or obliterating, with the intention of re'voking,'&c. Now it is observable, first, that the mere absence of a will, shown once to have existed, does not in fact show either of these modes of revocation, i. e. burning, cancelling or obliterating; much less does it show that done animo revocandi. The act is the mere symbol of the intention, and may exist without it. The will, to be revoked, need not be entirely consumed, provided it be burned animo revocandi. So, too, it might be accidentally, or furtively, burned, to any extent, and it not amount to a revocation. So too of cancelling or obliterating. The statute of Charles 2d is precisely the same as our own, with the addition to the specific modes of revocation, of "tearing." This is but one mode of obliterating, which is found in both statutes, so that the difference is not important. It is then not a legal, nor artificial, presumption of the law, like the presumptiones juris et de jure of the civil law, that if the will is burned, &c., it is at all events revoked. So too it being destroyed, or lost in any other mode. No doubt we v. Estate of Minkler. GRAND ISLE, Would hold, as the English Ecclesiastical courts have done, January, that the mere absence of the will did, prima facie, amount to 1842. McGrady v. Miller et al. proof of revocation. Toxley v. Jackson, 3 Phill. 128. But we would hold this merely a natural presumption, as matter of fact, and imposing the duty upon him who asserted the contrary, to support his assertion by proof. This was the rule adopted by the court in New York, in the case of Betts v. Jackson, ex dem. Brown, 6 Wendell, 173, where they reversed the case cited by counsel from the 9 Cowen, 208. This is the rule which seems to have governed the proceedings in the court below, and their judgment is affirmed. JAMES MCGRADY V. ROBERT MILLER and THOMAS SLOANE. It is a common principle that prior possession is sufficient to maintain trespass or ejectment against a stranger. When a man enters into possession of land, in this state, it is presumed he enters in his own right; and if under a deed, his acts are to be taken to be the acts of an owner and not of a trespasser. THIS was an action of trespass for breaking and entering plaintiff's close, in Alburgh, and for breaking and entering plaintiff's dwelling-house and destroying his goods and chattels. On trial in the county court, the plaintiff introduced testimony tending to prove that some seven or eight years before the trespass complained of, one Frederick Hoxsie entered upon the premises and erected a log house and occupied the same for four years, or nearly that time; that he then sold his possession and betterments to the plaintiff, who, on the day of the purchase, moved into the house and took possession of the premises, and continued in possession for two or three years, and until the trespass complained of. The plaintiff also introduced testimony tending to prove that, at the time in the writ mentioned, the defendants went to his house, and he being temporarily absent, put his furniture out of doors and GRAND ISLE, occupied the house and that when the plaintiff returned, which was on the same day on which he left, the defendants refused him admittance. The defendants then introduced testimony tending to prove that about forty years ago one Joseph Mott claimed the land, and that persons lived on it, acknowledging his right; that the last tenant of Mott left in or about the year 1815, from which time until Hoxsie entered and built as aforesaid the premises were unoccupied. The defendants also introduced testimony tending to prove that they entered and took possession by permission of said Joseph Mott, and as his tenants. The evidence tended further to prove, that, in 1817, the said Mott deeded said land, which was redeeded to him in 1820. that in 1822 he again deeded it, and it was afterwards redeeded to him; that it had always been claimed by him, as his right, and that he and those under him had, at different times, and as late as 1832, taken timber from the land or licensed others to do so. The plaintiff read in evidence a warranty deed from Joseph Mott to Giles Harrington, conveying to said Harrington said premises in fee simple. The plaintiff also introduced testimony tending to prove that said Harrington, while the plaintiff was in possession of said premises, told the plaintiff that he should not molest him, if he continued on the land. The defendants then offered and read in evidence a bond from said Harrington to said Mott, binding himself to reconvey said premises to said Mott, on certain conditions. It was also proved, by parol, but without objection, that Harrington brought ejectment for said land, against said Hoxsie, and recovered judgment, making title under said deeds to himself from said Joseph Mott. This was previous to plaintiff's taking possession. The defendants also introduced testimony tending to show that, since the commencement of this action, the plaintiff had said that he claimed title under Hoxsie and he believed Hoxsie had the best right to the land. The plaintiff requested the court to charge the jury that unless Joseph Mott had, by himself or his tenants, been in the actual possession of said premises for fifteen years before the abandonment of the actual possession of the premises, as aforesaid, he had no right to the same, and that defendants VOL. XIV. W. R. IV. 17 January, 1842. McGrady v. Miller et al. GRAND ISLE, could not justifiy under him, but the court declined to charge January, 1842. McGrady v. Miller et al. upon that point. The court charged the jury that said Mott had a right to the possession and that, unless they found that Harrington had constituted the plaintiff his tenant, the defendants were entitled to a verdict; that they should therefore duly consider the evidence of what passed between Harrington and the plaintiff, and determine whether the declarations of Harrington were to be understood as a license to the plaintiff to remain in possession under him, or as a refusal of Harrington to direct or interfere as to the subsequent possession of the land, and if they found that such a license ought to be inferred, they would regard the plaintiff as a tenant to Harrington and return a verdict in his favor. The jury returned a verdict for the defendants and the plaintiff excepted. Stevens & Seymour, for plaintiff. A continued peaceable possession of the premises by the plaintiff and Hoxsie, under whom he claimed, for seven years, gives the plaintiff a right of action against any one who shall forcibly eject him. 7 Wheaton, 59, 237. Richardson v. Anthony, 12 Vt. R. 283. The evidence introduced by the defendants did not even tend to show in Mott either a title to the fee of the land or a right to possession. Johnson v. McGuire, 4 Vt. R. 327. 4 Kent's Com. 110, 112. Smalley & Adams, for defendants. Prior possession is a sufficient title to enable the plaintiff to recover in ejectment against a stranger. Elthorp v. Dewing, 1 Chip. R. 141. Mott was both the legal and equitable mortgagor of the premises in question, and as such had a right to the possession as against the plaintiff who was a stranger to the title and had no right to the possession as against Mott or his tenants, therefore this action cannot be sustained. Runyan v. Messereau, 11 Johns. R. 534, 593. Hooper v. Wilson, 12 Vt. R. 697. Jackson ex. dem. Norton & Burt v. Willard, 4 J. Ch. R. 41, and cases there noted. Ham. N. P. 153. |