On the 19th day of March, 1895, Rachel Lenox Kennedy, the decedent, executed a last will and testament which had been carefully prepared by her legal adviser, and which disposed of all her property. On the 7th of November, 1897, she executed a codicil to this will by which she made a few additional legacies and reaffirmed the will. In a letter to her attorney in answer to a letter inclosing the codicil, she said: “ Your letter with paper enclosed was received this evening & I am much obliged to you for sending it to me so promptly, it is exactly what I want & I have nothing to suggest.” Subsequent to sending this letter she executed the codicil, and the will and codicil were in existence in the early *112part of June, 1896. At this time the decedent was in bad health, and her medical adviser had come to the conclusion that she was suffering from a disease from which she could not recover, but no communication seems to have been made to her of that fact. On the twenty-first of June she left New York for a summer resort on the coast of Maine. It does not appear that she took the will with her to Maine, although as she took some papers with her it is not impossible that she did. She died on July 31,1898, without retunir ing to New York, and after her death no will was found. It did not appear that there was any change in the circumstances of the decedent after the execution of this codicil, or that anything happened that would indicate a change of intention as to the testamentary disposition of her property. It did appear that she was extremely careless with her papers and securities; that at one time she lost this will and was unable to find it for some time; that she left a codicil to her will in a cab, and the will seems to have been kept in a desk or closet in her house. These facts, coupled with the interest that she took in charities, for which provision was made, certainly produce an impression that she did not intend to die intestate, and that her will and codicil had in some way been lost or mislaid. I quite agree, however, that this is not sufficient to overcome the presumption that arises from the disappearance of the will, and that from this evidence the court would not have been justified in finding that the will was in existence at the death of the decedent, or that it had been fraudulently destroyed during her life. It is only fair to add that I cannot find in this evidence anything that would justify even a suspicion that Mr. Kennedy was in any way connected with the disappearance of the will. Upon the trial there was admitted a large mass of testimony relating to the acts and declarations of the decedent from the time that' she executed the will to her death. The proponent also offered to prove certain declarations of the decedent, both before and after she left New York on the twenty-first of June, which tended to show that she understood that the will was in existence; but this was objected to by the contestants and excluded by the surrogate.
I can see no distinction between these declarations offered to be proved by the proponent and the other written and verbal declarations of the decedent which were admitted in evidence. There can *113be no doubt that a person who receives a legacy by a will would be incompetent to prove any declarations made to him by the decedent under section 829 of the Code of Civil Procedure; but that is because the witness is disqualified from testifying as to a personal transaction between himself and the decedent, not because the evidence of declarations made by the decedent is incompetent. It is quite doubtful whether the declarations made to others than those interested in the probate of the will which were offered in evidence would be sufficient if admitted in evidence to justify the probate of the will; but I do not concur in the opinion . of the court that declarations of the decedent after the execution of the will from which an inference can be drawn that she understood that the will was in existence, were incompetent. I agree as to the unsatisfactory character of such evidence; that it should be scrutinized with the greatest care. We must, however, bear in mind the distinction between the admissibility of testimony and the weight to be given to it, and also that there is a difference in the probative force of such testimony in relation to the subject which is intended to be proved by it. I quite agree that such declarations cannot be used to prove the contents of the will, or as evidence of a fact not connected with the intention of the person whose declarations are sought to be proved. The revocation of a will, however, involves something more than the destruction or obliteration of the paper upon which it is engrossed. The statute provides that “No will * * * shall be revoked or altered otherwise than by some other will in writing or some other writing of the testator declaring such revocation or alteration * * * or unless such will be burnt, torn, can-celled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself or by another person * * * by his direction or consent.” (R. S. pt. 2, chap. 6, tit. 1, art. 3, § 43.)
The intent and purpose of the testator thus become a material subject of inquiry. It is conceded that these declarations would be competent when accompanying the act which destroyed or obliterated the instrument, as part of the res gestee, but there was no evidence of the time when or the circumstances under which this will was destroyed. There was a presumption that such will was, at *114some time prior to the death of the decedent, destroyed with intent to revoke the same, which arose from the fact that after the death of the decedent no will was found. If destroyed, the will must have been destroyed some time between the eleventh of June and the death of the decedent in July. It seems to me that it may fairly be said that declarations made during that period are a part of the res gestm. There is also a class of cases which recognizes an exception to the rule that hearsay evidence is not admissible where the subject of inquiry is an intention, a course of conduct, or knowledge of a fact. In the Aylesford Peerage case, before the committee of the House of Lords (11 App. Cas. 1), the question presented was as to the legitimacy of a child born during coverture, and declarations of the mother after she had separated from her husband and was living with another man were received in evidence as part of the res gestm of her relations to the reputed father of the child, to rebut the presumption that the child was legitimate, although her evidence to that effect would not have been admissible. The Earl of Selbornb, in his judgment, said: “ I am of opinion that- these letters ought to be read. The authorities which have been referred to I assume to be still in force; that is to say, that you could not put into the witness box Lady Aylesford, or if he were still living, Lord Aylesford, for the purpose of proving who the real father of the child was. But it by no means follows that you cannot prove acts and conduct of the one or the other tending, as part of a series of res gestm, to throw light upon and to lead to a just conclusion upon a question on which they could not directly be permitted to give evidence.” And Lord Blackburn said that the presumption was that the husband was the father of the child, but that presumption could be rebutted by the conduct of the parties, and that these letters come within the class of evidence of conduct which is evidence leading to the conclusion that the child was not legitimate. The same exception was recognized and applied in Swift v. Massachusetts Mutual Life Ins. Co. (63 N. Y. 186).
In the case now before us, the question was whether or not this decedent had destroyed her will with intent to revoke it; and it seems to me that within this rule any act or declaration of the decedent which tended to prove a condition of mind, or an intention inconsistent with the destruction of the will, with intent to *115revoke it, tended to negative the fact that it was destroyed with such an intent, and thus to rebut the presumption arising from the fact that the will was not found after her death, and for that purpose was competent evidence. Such declarations, when offered to prove the intent of the person making them, are not, strictly speaking, hearsay, but evidence of the state of mind or mental condition of the person making them at the time they are made. It is well settled that the declarations of a person whose mental condition is in question are admissible; and thus declarations of persons whose testamentary capacity is questioned are admissible, not to prove the facts stated, but to prove the condition of mind at the time the act which is being considered was performed. It may be that such declarations would have little, if any, probative force to prove the existence of the paper at the time of the death of the decedent, but they were, I think, competent evidence in the proceeding to prove the decedent’s intent as to this particular instrument which had been duly executed.
There seems to be no dispute but that the rule in England and in the other States justifies the admission of this testimony. In England it would seem that the rule is well settled. In the leading case of Sugden v. Lord St. Leonards (L. R. [1 Prob. Div.] 154) declarations of the testator in relation to his will were admitted in evidence. It was claimed by counsel for the defendant that these declarations were not competent to prove the contents of the will, but it does not appear that their admissibility as evidence was questioned. In that case great weight was given to the declarations of the testator upon the question as to the revocation of the will, and the only tioubt expressed by Lord Justice Hellish was in regard to the competency of the declarations of the testator to prove the contents of the will.
In Woodward v. Goulstone (L. R. [11 App. Cas.] 469) Lord Herschell, in the House of Lords, doubts the correctness of the ruling in Sugden v. Lord St. Leonards ; but it is quite evident from his remark that he referred to the question raised by Lord Justice Hellish as to the competency of the declarations of the testator for the purpose of proving the contents of the will; and there can be no doubt, I think, but that it has been the universal practice in England to admit the declarations of a decedent as evidence upon the question *116of the revocation of the will. In the other States I think there is no question but that, so far as they have passed upon the question, such declarations have been held admissible. The cases'upon this subject are collected in a note to the case of Clark v. Turner (38 L. R. A. 433, 436). No case is there referred to, nor am I aware of any, which holds that the declarations of the testator are inadmissible. In 13 American and English Encyclopaedia of Law (p. 1091) the rule is stated as follows: “ Declarations of the testator as to the existence of his will are admissible,” and a large number of cases are cited in the note to sustain this statement. In our own State there has been a conflict of opinion on the question. The prevailing opinion is based upon the cases of Dan v. Brown (4 Cow. 483) and Jackson ex dem. Brown v. Betts (6 id. 377).
In neither of those cases was the question involved in the decision. Dan v. Brown (supra) was an action for partition, the defendant relying upon the proof of a lost will. The defendant had a verdict, and on appeal to the Supreme Court the verdict was set aside upon the ground that the loss of the will was not sufficiently proved to warrant the introduction of secondary evidence of its contents. The court in discussing the question as to the proof of the revocation of the will, incidentally remarked: “ The execution of the will being established, the next question is whether there was any evidence that it was cancelled. On this point I lay no stress upon the declarations of the testator. They were made long after the execution of the will, and shortly before his death. They are not evidence, unless they relate to the res gestee, or to an act done; as where, by mistake, the will is torn or thrown into the fire. The declarations of the testator are, in such cases, evidence, where they show the quo conimo,” but the case was decided upon the other ground. The question upon the same will was again before the Supreme Court in the case of Jackson ex dem. Brown v. Betts (supra). There the plaintiff had been nonsuited, the Circuit Court holding that, upon the proof, parol evidence of the contents of the will was inadmissible, but a new trial was granted upon the ground that the court should have admitted such evidence. In the course of the opinion, Sutherland, J., remarked that the “ declarations of the testator during his last sickness, as to the existence of his will, and the place where it would be found, were incompetent evidence, and *117were properly rejected by the judge. This point was decided in Dan v. Brown (4 Cowen, 490), in relation to this very will.” This observation was not made in relation to the point decided in the case, as a new trial was ordered upon the ground that evidence which had been rejected should have been admitted. Upon the new trial (9 Cow. 208) it appeared that certain declarations of the testator were admitted. In the course of the opinion the court said: “ On the last trial, the counsel for the defendant cited the case in 6 Cowen, to prove that the evidence offered for the purpose of showing a revocation, ought to be submitted to the jury to pass on. * * *
The plaintiff offered to prove that the day before the testator was taken sick he called upon Lockwood and requested him to draw a codicil to his will. This evidence was objected to, but admitted. Lockwood testified that the testator applied to him to draw a codicil, but it was not done. The will was not produced. It is not material in the decision of this cause, whether Lockwood's testimony was competent or not; for it will be seen in the view taken, that the will was sufficiently proved independent of this evidence, and did not require its support.” From this it must appear that it was not considered that the former decision had settled the question, as declarations of the deceased were admitted on the trial. Upon appeal to the Court of Errors (reported in 6 Wend. 173), the chancellor, in ordering a new trial, said : “ It is to be regretted that the question as to the admissibility of the declarations of the testator, to repel or to confirm the presumption that the will had been destroyed by him, is not in a situation to be examined and decided by this court before the new trial takes place. The supreme court on a former occasion (6 Cowen's Rep. 382) decided that the circuit judge had correctly rejected evidence of the declarations of the testator, in his last sickness, recognizing the then existence of the will, and directing as to the place where it might be found. As that question could not be raised or argued in this canse, I have not examined the subject sufficiently to have made up a definite opinion thereon; and probably I ought not now to express such opinion, even if I had no doubts on the subject. I will, therefore, only say that, in the investigation of the other questions in this cause, I have necessarily been compelled to look into this subject so far as to see there is sufficient doubt as to the correctness of the decision of the supreme court on that point to authorize *118them to direct a reargument of the question, if it shall again come before them. The frequent insincerity of testamentary declarations and the great danger that the real meaning of the testator may be mistaken or misrepresented, when he is no longer able to explain what he-meant, must in general render such declarations of but little value as evidence. But they are sometimes received to explain a latent ambiguity, or to ascertain the intention of the testator in case of doubts arising from an equivocal act; and the uniform practice of the English testamentary courts has been to receive such declarations to strengthen or repel the presumption that a will once legally executed, but not found at the death of the testator, had been destroyed by him.” It would thus seem quite clear that the question was not decided by the Supreme Court, and in the Court of Errors the question was considered open for subsequent determination.
The next case to which attention should be called is Knapp v. Knapp (10 N. Y. 276). There the declarations of the deceased were admitted apparently without objection. The Supreme Court held that the evidence was not sufficient to justify a finding that the will was in existence at the time of the death of the decedent, and upon an appeal to the Court of Appeals that decision was affirmed; but no doubt was expressed upon the competency of the testimony. In Waterman v. Whitmey (11 N. Y. 157) the question was as to the testamentary capacity óf the testator, and the court there held that declarations of the testator were competent upon that question, and as such declarations had been excluded, reversed the judgment. Judge Selden, in the discussion of the question as to the admissibility of declarations of the deceased, classified them into three groups: First, those offered to show a revocation of a will admitted to have been once valid; second, to impeach the validity of a will for duress, or on account of some fraud or imposition practiced upon the testator, or for some other cause not involving his mental condition, and third, to show the mental incapacity of the testator, or that the will was procured by undue influence. And he came to the conclusion that declarations of the testator were not admissible to show a revocation of a will admitted to have been once valid. That question-, however, was not before the court for consideration and was not involved in the decision, and the attention of the court was not drawn to the question presented in this case, viz., “ the *119competency of declarations of the testator to prove his intent as to revocation,” nor to the cases in other States. It seems to have been assumed that Jackson ex dem. Brown v. Betts (supra) decided the question against the admissibility of such declarations, although, as we have seen, the question was not presented in that case for determination.
In Matter of Marsh (45 Hun, 108) the same question was examined by Judge Bradley, in delivering the opinion of the General Term of the Supreme Courtthe decisions in this State were reviewed, and he came to the conclusion that such declarations were admissible to prove the intent of the testator. The same question was before Surrogate Rollins in the case of Hamersley v. Lockman (2 Dem. 524) where .lie came to the conclusion that such declarations were not competent. In Collyer v. Collyer (110 N. Y. 481) the declarations of the deceased seem to have been proved, both by the proponent and the contestant, and it was held that the evidence was not sufficient to justify the probate of the will. The only notice in the opinion as to the competency of these declarations was : “ As the evidence on the part of the petitioner wholly failed to make out his case, he was not harmed by any of the evidence offered and received on behalf of the contestants, to which he makes objections, and such objections need not, therefore, be considered.”
I have now called attention to all the cases that appear to have discussed the question in this State, and think it clear" that in no case was the question directly presented to the court, except in Matter of Marsh and Hamersley v. Lockman (supra), and in no case has the question been finally determined by an adjudication binding upon us. In this state of the authorities and considering the universal practice in the other States and in England, and believing as I do that this testimony is competent upon the question of the intent of the deceased, I do not concur with Mr. Justice RtmsEY.
Decree affirmed, with costs.