be defeated by the failure of the jury to render any verdict, when a verdict against her would not have that effect. On an appeal from the probate court, "if any fact material to the cause be disputed, the court may direct an issue proper to try such fact to be framed, and ascertain the same by the verdict of a jury." Pub. St. c. 200, § 11. The first issue in this case is objectionable in that it does not clearly submit some particular question of fact to the jury. The judgment to be rendered is whether the instrument propounded is or is not the last will and testament of the deceased. The issue framed in this case apparently submits the whole question to the jury, whereas the issue should require the determination of some fact, the existence or nonexistence of which is material upon the legal question whether the disputed paper is or is not the last will of the deceased. Rules of Court p. 31 (56 N. H. 601). In making the issue, the executors move that the will be proved and allowed as and for the last will and testament, etc. This motion is addressed to the court, not the jury. The objecting party then sets up any facts which are the grounds of his claim that the instrument is not the last will, etc. If the facts are material,—that is, facts from which, if established, it would follow as matter of law that the instrument is not the testator's last will,-an issue is awarded him, and judgment rendered as the fact is found. But the whole question is not properly to be thrown to the jury in this manner. Dudley v. Wardner's Ex'rs, 41 Vt. 59. The parties in the present case, however, appear to have treated the issue as if it had been that since the execution of this instrument the testator duly executed another will, by the terms of which the first was revoked; or, more briefly, that the will was revoked by the testator in his lifetime. Upon this issue no will was produced. There was evidence, however, tending to show the execution of another will, but no evidence was admitted in the case of the contents of the second will. There being no evidence in the case that Lane had executed a subsequent will revoking in terms or by its inconsistent provisions the will whose validity was litigated, there was nothing to submit to the jury upon the first issue, considering it as the parties appear to have treated it. Upon motion of the plaintiff, made before the case was submitted to the jury, that issue would have been withdrawn; but, having suffered the case to go to the jury upon this issue without objection, her motion comes too late after the failure to find a verdict. Baldwin v. Wentworth, 67 N. H. 408, 36 Atl. 365; Haydock v. Salvage, 67 N. H. 598, 38 Atl. 207. Had the motion been seasonably made, and the defendant's attention thereby called to the lack of evidence, it might have been that justice would have rendered it necessary that the case should have been reopened to allow the defendant to supply any missing testimony. However that may be, the plaintiff allowed

the case to be submitted to the jury without objection to the want of evidence; and, the jury having rendered no verdict, the question of revocation, when the issue is properly framed, is still undetermined, and there can be no judgment either way until the question of fact is settled. There is no occasion for the defendant's motion for a new trial. Until the issue is decided, she is entitled to as many trials as may be necessary, assuming that upon a new trial sufficient evidence will be offered to warrant a verdict by the jury.

Evidence of declarations of the testator that he had made a second will, and as to its contents, was offered and excluded. The plaintiff claims that all the evidence introduced and offered by the defendant to prove the existence and due execution of a will revoking the first will was insufficient for that purpose. If it were conceded that the case contains all the evidence that can be adduced upon these questions, we might, treating the statement as an agreed case, pass thereon; but, in view of the fact that the defendant claims to have additional evidence to introduce upon a subsequent trial, it does not seem advisable to consider this question until the evidence is all before us. The question of the admissibility of the testator's dec larations that he had made a second will, and as to its contents, will arise at another trial, and we have considered it. The testimony of Mrs. Felch, as stated in the case, "tended to show the execution of a will by the testator of a subsequent date to the one offered for probate, to which she was one witness, her husband, Fred R. Felch, now deceased, who wrote the will, was a second, and there was a third witness, whom she did not remember." This evidence would seem to be sufficient, prima facie at least, for the submission to the jury of the question whether the deceased did in fact execute a second will, and is so held in Dan v. Brown, 4 Cow. 483; but, in view of the suggestion of counsel as to newly-discovered evidence, this question may not arise upon another trial. Evidence having been given of the due execution of a will and its loss, one question is whether declarations of the testator are admissible to show the contents of the will. The loss of the will being shown, its contents may be shown by parol in the same way as proof of the contents of any other lost instrument. Brown v. Brown, 8 El. & Bl. 875, and note, 92 E. C. L. p. 889. In like manner, in order to establish the revocation of a prior will, which has continued in existence, proof of the contents of a subsequent will, which has been lost, destroyed, or canceled, is admissible. Id., and authorities cited. The question whether declarations of the testator are admissible to prove the contents of a lost will has been most thoroughly examined in the case of Sugden v. St. Leonards, 1 Prob. Div. 154, which was approved in Pickens v. Davis, 134 Mass. 252,

**

and the conclusion reached was in favor of their admissibility. In the first case, in the discussion, it is said by Jessel, M. R. (pages 240-242): "Now, it might well have been that our law, like the law of some other countries, should have admitted as evidence the declarations of persons who are dead, in all cases where they were made under circumstances in which such evidence ought properly to have been admitted; that is, where the person who made them had no interest to the contrary, and where they were made before the commencement of the litigation. That is not, however, our law. As a rule, the declarations, whether in writing or oral, made by deceased persons, are not admissible in evidence at all. But so inconvenient was the law upon this subject, so frequently has it shut out the only obtainable evidence, so frequently would it have caused a most crying and intolerable injustice, that a large number of exceptions have been made to the general rule. * * The exceptions are generally considered to be three principal and three subordinate exceptions. * First, there is an exception of a declaration accompanying an act; secondly, of a dec laration against interest; and, thirdly, of a declaration made by a person in the course of business, one which it was his duty to make. Those are three large exceptions. There are then some smaller exceptions. The first is the proof of matters of public and general interest, one might say of quasi historical interest, not actually historical, where we admit the declarations of persons who may, from their position, be fairly presumed to have had knowledge on the subject. In the next place, we admit evidence which is in its nature very weak indeed; that is, in matters of pedigree, where we admit declarations of deceased members of a family on its being shown that the persons were members of the family. Now, I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place, the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favor of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favor. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge, not possessed in ordinary cases. Now, all these reasons exist in testifying both as to matters of public and general interest and as to matters of pedigree, and some, if not all, of them exist in the other cases to which I have referred. They all exist in the case of a testator declaring the contents of his will. Of course, as in the

case of pedigree, the courts must be cautious in admitting such evidence. From its very nature it is evidence not open to the test of cross-examination. It is very often produced at second or third hand, and it is therefore particularly liable to lose something of its color in the course of transmission. It is so easily and so frequently fabricated that all courts which have to dispose of such cases must be especially on their guard. But that goes only to the question of the weight to be attributed to the evidence when admitted; it does not go to the question of admitting the evidence itself; and I must say it appears to me that, having regard to the reasons and principles which have induced the tribunals of this country to admit exceptions in the other cases to which I have referred, we should be equally justified and equally bound to admit it in this case. When I say 'equally,' perhaps I state the case a little too low, because if there is any case in the world in which it is incumbent upon a tribunal not to grant a premium for fraud or wrong, not to hold out to the world that any man who is able to get hold of the will of a testator which may disappoint him of his expectations, just or unjust, if he once destroys it, shall be able to acquire the property either for himself or for those whom he wishes to benefit,-I say, if ever there was such a case, it is the case of a lost will. The court should be anxious not narrowly to restrict the rules of evidence, which were made for the purpose of furthering truth and justice, but, guided by those great principles which have guided other tribunals in other countries in admitting this kind of evidence generally, to admit it at all events in the special case which we have under consideration." In this case, in 1876, the written and oral declarations made by a testator, both before and after the execution of his will, the will being lost, were, after extended discussion, and the greatest consideration, held admissible as secondary evidence of its contents. The arguments advanced by Jessel, M. R., and Cockburn, C. J. (pages 224-229), have not been answered, and they seem to us unanswerable. The objection to the evidence is that it is hearsay, not open to cross-examination, and not given under the sanction of an oath. The declaration, however, is that of a person, now deceased, having the means of knowledge, without interest to misrepresent, and is the best evidence of which the case is capable. Betts v. Jackson, 6 Wend. 173. It is difficult to see on what ground the reason of the admission of the evidence of declarations of deceased persons in cases of disputed boundary, which is put upon the ground that it is the best evidence of which the case is capable, does not apply to cases like the present. Lawrence v. Tennant, 64 N. H. 532, 15 Atl. 543; Nutter v. Tucker, 67 N. H. 185, 30 Atl. 352. To admit the declaration of a deceased person in one class of cases because it is the best evidence of

to judge of the interest of the declarant as bearing upon the weight of his testimony (Lawrence v. Tennant, supra), and to exclude the declaration of the deceased person in this case, would be to establish a particular rule of evidence for a special class of cases, for which no good reason can be given. Our conclusion is that the evidence of the deceased's declarations as to the contents of the last will is admissible to show its contents, and, if the will is thereby found inconsistent with the earlier will, to show the revocation of the prior will. Gage v. Gage, 12 N. H. 371, 381.

Whether the declarations of a testator are admissible to prove the due execution of his will is another and different question. The great weight of authority is to the effect that such declarations are not, of themselves, sufficient. Hoitt v. Hoitt, 63 N. H. 475, 499, 500, 3 Atl. 604, and cases cited; 1 Redf. Wills (1st Ed.) 555; 1 Jarm. Wills, 245. The reason of the rule is that, "the exercise of the testamentary power being conditional on the observance of the formalities prescribed by statute, a man cannot, by his own mere assertion, establish that he has fulfilled the conditions necessary to the exercise of the right.” Sugden v. St. Leonards, supra. "Mere vague declarations of testators that they have made their wills are not always to be implicitly relied on.

* In common parlance a man

may well say that he has made a will when he has written a testamentary paper, though unfinished." 1 Jarm. Wills, 245, 246. Upon the authorities, it is clear that the express revocation of a will, or the execution of another will revoking the former, cannot be shown by declarations of the testator alone. That, however, is not the question in this case, which is whether, when there is evidence competent for the jury upon the question of due execution, and from which they may properly find such execution, the inference of fact upon this issue from the facts already admitted can be strengthened by evidence of declarations of the testator, verbal or written, or of his conduct and acts tending to establish the point in issue. All the considerations of necessity that have been suggested with reference to proof of the contents of a lost will may apply with equal force to the admission of this evidence. If the issue were whether a will duly executed were a forged or genuine will, and the evidence were evenly balanced, would not evidence that the supposed will remained in the testator's possession, that he was seen to examine it, that he spoke of it as his will, be of the highest moral convincing force in favor of the will? No logical reason appears why such should not be legal evidence. The admission of such evidence should be confined to the corroboration of direct evidence of execution, for the reason that otherwise the evidence is but proof of the testator's under

cannot take the place of the formalities prescribed by law. Hoitt v. Hoitt, supra. Upon these considerations we think the testator's statement that he had made a will, which was written by Fred R. Felch, was admissible in corroboration of the testimony of Mrs. Felch to the same effect, and should have been received.

The plaintiff also moves for judgment on the ground that the existence of the second will at the testator's death is not shown, even if the proof were sufficient to establish its execution. No question such as is raised by this motion appears to have been submitted to the jury, unless it is embraced in the view the parties appear to have taken of the first issue. Whether the will was in existence at the testator's death or not is a question of fact. If that fact is one included in the issue whether the first will was revoked, the motion comes too late, on the grounds heretofore stated. It seems well settled that where a will is proved to have been once duly executed, to have remained afterwards in the testator's possession, or was last heard of in his custody, but at his death cannot be found, the presumption is that it was destroyed by him animo revocandi. 2 Greenl. Ev. § 681; 1 Redf. Wills (1st Ed.) p. 329, § 48; Betts v. Jackson, 6 Wend. 173; Brown v. Brown, 8 El. & Bl. 875, and authorities in note, 92 E. C. L. 889. If the will is not shown into the testator's possession, the failure to find it after his death furnishes no ground for & presumption of revocation. 1 Greenl. Ev. § 681. Whether the second will was destroyed is important, so far as the probate of the present will is concerned, only if the effect of such cancellation of the second will would be to revive the first. Although, upon this point, the authorities are in conflict, the better opinion seems to be that, even in the absence of statute provisions upon the subject, such destruction would not have that effect without evidence that such was the intention of the testator, especially if the later will contained a clause of revocation (Pickens v. Davis, 134 Mass. 252; Cheever v. North, 106 Mich. 390, 64 N. W. 455; 2 Greenl. Ev. § 683), which, in view of the fact that there is no evidence upon these points, is as far as it is necessary for us to go at present. Whether, as a matter of convenience, and for the purpose of settling the entire controversy by one trial, the defendants, if they rely upon the second will, ought not to proceed in the probate court for probate of the second will, so that upon appeal to this court the whole controversy could be passed upon by one jury, is a matter for the consideration of counsel, and which, if they do not agree, can be determined at the trial term. Case discharged.

WALLACE, J., did not sit. The others concurred.

SMITH et al. v. FURBISH. (Supreme Court of New Hampshire. Coos. July 27, 1894.)

DEED-CONSTRUCTION

·EASEMENT - EXCEPTION DESCRIPTION-ELECTION FORFEITURE TENANCY IN COMMON - RIVER AS BOUNDARY.

1. Under a deed by one owning a tract on both sides of a river, conveying the part on the east side of the river, reserving the right of building a dam across the river at any point against said land, together with the right of flowage of said land caused by said dam when constructed, and also reserving an acre of land at the east end of the dam, the right of flowage is appurtenant to the land of which the mill and dam will be a part.

2. The reservation in a deed from C. to W. conveying land on the east side of a river, reserving the right to build a dam across the river at any point against said land, together with the right of flowage of said land caused by said dam when constructed, and also reserving a piece of land fronting on the river in the immediate vicinity of the east end of said dam, 12 rods long on the bank of the river, and extending back far enough, same width, to comprise an acre, is sufficiently definite; C. having the right to elect where and how high the dam shall be, and thus determine the amount of land to be flowed, and the location of the acre.

3. Under a deed from C. to W. reserving an acre to be located by C., W. to have the timber thereon, W. does not forfeit his right to the timber by neglecting an unreasonable time to remove the timber after C. has selected the acre, thus obstructing the erection of a mill thereon.

4. Reservation in a deed of C. to W. of an acre, to be selected by C., is not forfeited by mere delay of C. to make selection.

5. Under a deed from C. to W. reserving an acre, to be selected by C., the parties are tenants in common till partition is made by exercise of the right of election or otherwise.

6. A reserved "piece of land fronting on said river * 12 rods in length on the bank of said river, and extending back far enough, same width, to comprise one acre," is an acre on the side of the water's edge, and the half of the bed of the river in front thereof.

to

7. There is an exception, not a reservation, of the "right of building a dam gether with the right of flowage," as well as of an acre of land, so that words expressly showing that a fee, and not a life estate, is retained, are not necessary, where one owning land on both sides of a river conveyed the part on the east side, "reserving" the right of building a dam, together with the right of flowage, and "also reserving" an acre of land at the east end of the dam, though the words are reserving "to myself," while the grant is to one and "his heirs and assigns, forever."

8. Election need not be made by a grantor in his lifetime, but may be by his heirs, where he makes a conveyance excepting an acre, location of which is to be made certain by election. Chase, J., dissenting.

all that part of lot numbered four, in the tenth range of lots in said Berlin, lying on the east side of the Androscoggin river; reserving to myself the right of building a dam across said river at any point against said land, together with the right of flowage of said land at any and all times caused by said dam when constructed; also, reserving a piece of land fronting on said river in the immediate vicinity of the east end of said dam, twelve rods in length on the bank of said river, and extending back far enough, same width, to comprise one acre of land. Said Wilson to have the timber on said acre of land." October 14, 1865. Cross conveyed to one Smith one-half part, in common and undivided, of all his interest in said lot. Smith and Cross are dead, and the plaintiffs are their heirs, who claim title under the reservation in Cross' deed to Wilson. Other facts appear in the opinion.

William L. Foster, for plaintiffs. Ladd & Fletcher, for defendant.

DOE, C. J. Lot 4 of range 10 in Berlin is under and on both sides of the Androscoggin river, which flows in a southerly direction. Between these claimants of water power, it is a matter of importance that the bed of the river is a part of the lot, and that every acre, bounded easterly or westerly by the river, extends to the center of the stream. While the portion of the lot on the east side may be conveniently called the east section, and the other portion the west section, the thread of the river is in this case an immaterial line, except at the points where it has become a boundary of adjoining owners. Where both banks and the bed belong to the plaintiffs, no light is thrown on their rights by dividing the bed into two parts, or drawing a line between it and the bank on each side. Their channel and their adjoining upland are one tract. Their right to build a dam on it and flow their own territory is an element of their title. Their right to flow the defendant's part of lot 4 is presumed to be an appurtenance of their land. "Though an easement ** may be created by grant in gross, as it is called, or attached to the person of the grantee, this is never presumed when it can fairly be construed to be appurtenant to some other estate." Washb. Easem. *28; Spensley v. Valentine, 34 Wis. 154, 160; Kuecken v. Voltz, 110 Ill. 264, 268, 269; McMahon v. Williams, 79 Ala.

*

Facts agreed. The plaintiffs demand of the defendant the possession of a lot of land, numbered 4, in the tenth range of lots in Berlin. Both parties claim title under one Cross. May 11, 1865, Cross conveyed to the defendant's grantor, Wilson, the premises in question, which were described in the deed as follows: "A certain piece of land, being

that the plaintiffs' right of flowage, expressly reserved by deed, was intended to be attached to the soil on which by the terms of the same deed the dam was to be built. "The right of flowage * * caused by said dam when constructed" was evidently reserved as a part of a mill privilege, for the benefit of a mill to be operated by water to be raised by the dam, and is fairly construed to

be appurtenant to the land of which the mill and dam will be a part. Cross, being the owner of lot 4, conveyed a part of the east section to Wilson. The deed is clear, full, and precise. The grant is of "a certain piece of land, being all that part of lot numbered four, in the tenth range of lots in said Berlin, laying on the east side of the Androscoggin river; reserving to myself the right of building a dam across said river at any point against said land, together with the right of flowage of said land at any and all times caused by said dam when constructed; also, reserving a piece of land fronting on said river in the immediate vicinity of the east end of said dam, twelve rods in length on the bank of said river, and extending back far enough, same width, to comprise one acre of land. Said Wilson to have the timber on said acre of land." This conveyance was made in 1865. In 1888, Cross being dead, the plaintiffs, as his successors in title, surveyed an acre according to the description given in the reservation, marked it on the ground, informed the defendant, the successor of Wilson, that they intended "to locate a dam there," and requested him to remove the timber. This suit is a writ of entry for that acre. The defendant contends that the reservation of an acre was void for uncertainty, and that in "the right of building a dam" and "the right of flowage" Cross reserved only a life estate.

1. A deed of a lot of land in Manchester, describing it as "fronting westerly on Merrimack river and easterly on Elm street, 12 rods in length on the bank of said river and 12 rods on said street," would convey the grantor's title from the middle of the river to the middle of the street. An intent that the soil in the river and street shall be owned by a person who does not own the abutting land is so improbable that it would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the grantee to the edge of the street and the edge of the river. 3 Kent, Comm. 428; Wallace's note in Dovaston v. Payne, 2 Smith, Lead. Cas. (4th Am. Ed.) 189; dissenting opinion of Redfield, J., in Buck v. Squiers, 22 Vt. 484, 494; Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606; Proprietors of Claremont v. Carlton, 2 N. H. 369, 371; State v. Gilmanton, 9 N. H. 461, 463; Greenleaf v. Kilton, 11 N. H. 530, 533; State v. Canterbury, 28 N. H. 195, 216; Woodman v. Spencer, 54 N. H. 507, 512, 514, 516; Sleeper v. Laconia, 60 N. H. 201, 202; Taylor v. Blake, 64 N. H. 392, 10 Atl. 698; Kent v. Taylor, 64 N. W. 489, 490, 13 Atl. 419; Capron v. Kingman, 64 N. H. 571, 14 Atl. 868. Such a limitation in the case of a street would be contrary to universal practice (3 Kent, Comm. 433), and the presumed intent is the same whether the boundary is a street or a fresh-water river. On the question of fact whether certain phrases or circumstances are sufficient evi

dence of a different intent (Gould v. Railroad Co., 142 Mass. 85, 89, 7 N. E. 543; Gaylord v. King, 142 Mass. 495, 503, 8 N. E. 596; Holloway v. Southmayd, 139 N. Y. 390, 401, 412, 34 N. E. 1047, 1052; Tied. Real Prop. §§ 833, 837), there has not been a unanimity of opinion in all jurisdictions, but the presumption is regarded as an established rule; and in this state it is settled (in cases before cited) that such terms as those used in Cross' reservation do not prove an intent to sever the channel of the river from the riparian estate of which it is presumed to be a part. If a Manchester lot, abutting on Merrimack river and Elm street, were described in a deed as extending northerly from a given line far enough to comprise 25 acres, or 25,000 square feet, the quantity of measured land would be less than the area of the granted premises. Whether the price were a lump sum, or $1,000 an acre, or $10 a foot, the east half of the river and the west half of the street would not be included in the measurement. The law takes notice of the fact that the bank of the Merrimack is a more convenient place for monuments than the center of the stream. Gouverneur v. Ice Co., 134 N. Y. 355, 365, 31 N. E. 865. In material elements of utility and value, the river and street differ from ordinary land in which the owner has a right of exclusive occupation. Lord v. Commissioners, 12 Moore, P. C. 473, 497; Woodman v. Spencer, 54 N. H. 507, 513. The usage and understanding of the community (judicially noticed as evidence of the meaning of a deed), and the character of the use generally made of a river and street, would show that the half of each which passes by a conveyance of an abutting lot is not within the specified dimensions. Gouverneur v. Ice Co., supra; Holbert v. Edens, 5 Lea, 204; Jones v. Pettibone, 2 Wis. 308; Railroad Co. v. Schurmeir, 7 Wall. 272, 286, 287; Jefferis v. Land Co., 134 U. S. 178, 196, 10 Sup. Ct. 518; Hardin v. Jordan, 140 U. S. 371, 380, 381, 11 Sup. Ct. 808, 838, and cases there cited; Salisbury v. Railway Co., 5 C. B. (N. S.) 174, 209; Berridge v. Ward, 10 C. B. (N. S.) 400, 402, 408, 411, 414, 415; Pryor v. Petre [1894] 2 Ch. 11. The erroneous rule, that a line described as running "on the bank" of a river disproves an intent to make the river the boundary, is supposed to have been adopted in the unreported case of Alcock v. Little, decided in 1815, and was recognized as sound in a dictum in Rix v. Johnson, 5 N. H. 520, 523, 524. In Daniels v. Railroad Co., 20 N. H. 85, 88, a deed from the plaintiff to the defendants named the bank of Connecticut river as the western boundary, and described the premises as situated between the river and a given line. Cold river passed through the premises, but was not mentioned in the deed. In a written contract, reciting the conveyance, the defendants promised to pay for "said land lying on both sides of Cold river, accurately measured, * ** at the rate of $100 per acre, except so much thereof as is highway."