Jackson, ex dem. Coe and others, against Kniffen, 2 Johns. 31

Thompson, J. This case was submitted to the court without argument. It appears, that the right of the respective parties to the premises in question, depends on the validity of the will of Daniel Kniffen, under which the defendant claims. The lessors of the plaintiff contend, that the will is void. To establish this, they offered, upon the trial, to prove certain parol declarations, by the testator, after the due execution of his will, some of which were made a few hours before his death, purporting that he had executed his will through fear and compulsion, and that he revoked the same.

This testimony was overruled, and the question now presented is? whether it was competent evidence, and ought to have been admitted. The other circumstances given in evidence, tending to show that the testator, when he executed the will in question was under improper restraint might have been submitted to the jury; but on the rejection of the parol declaration of the testator, the .plaintiff submitted to a nonsuit. In whatever point of view the testimony offered is considered, I cannot but think that it was properly overruled.

It could not, if placed in the strongest possible terms, amount to a revocation, without a direct violation of the statute, which declares that no will (of land) shall be revoked, or altered, except by writing, executed with all the requisites of a will, or by cancelling the same. If these declarations were not to operate as a revocation, I am at a loss to see in what manner they could affect the will. To say that they were proper, in order to show that the instrument in question was not duly executed, by reason of its having been signed under duress, is assuming the very point which was to be proved.

If they were legal evidence, they must be so, when standing alone, unaided by any of the circumstances previously proved. That th.e declarations were made a few hours before the d,eath the testator, can add nothing to their efficacy ; for, Surely, he could not be considered as standing in the c^arac(:er of a witness, even admitting the declaration# of a witness in extremis, to be admissible in any case.

This will might have been executed under circumstances which ought to invalidate it; but to allow it to be impeached, by the parol declarations of the testator himself, would, in my judgment, be eluding the statute, and an infringement upon well settled and established principles of law. (1 Vezey, 440. 5 Co. 69. 2 P. Wms. 136.) The only case that has fallen under my observation, which looks like countenancing, in any measure, testimony of this kind, is that of Nelson v. Oldfield, reported in 3 Vernon, 76.

We have, however, but a very imperfect statement of the case there givén; and the point before the court to be decided, was whether a will of personal estate, which had been proved in the spiritual court, could be controverted in the court of chancery. It is true, the reporter observes, that by the depositions of witnesses examined in the cause, the complaints of„ the testatrix, during her last sickness, respecting the means by which she had been induced to execute her will, were stated; but no objection appears to have been made to the evidence.- The defence relied upon, was the conclusiveness of the probate.

The admissibility of the testimony not being the point before the court, this cannot, in my opinion, be considered an authority to control the present case. To permit wills to be defeated, or in any manner whatsoever impeached, by the parol declarations of the testator, appears to me repugnant to the very genious and spirit of the statute, and not to be allowed. My opinion, therefore is, that the motion must be denied. Kent, Ch. J. declared himself to be of the same opinion.