“ The rule is that a deed thirty years old may be read in evidence without proof of its execution, provided possession has constantly attended it.” Waldron v. Tuttle, 4 N. H. 371; Homer v. Cilley, 14 N. H. 98. It is the accompanying possession alone which establishes the authenticity of an ancient deed. Ibid.
Here the deed offered was nearly fifty years old when the suit was commenced. The grantee entered under it, and was in possession, until he, with his sons, built a house upon it, and one of his sons moved upon the land, and there resided till his father’s death, and afterwards, while he lived. There is no evidence that the son ever claimed under any other title than his father’s, or that any person claiming under any other title has *452ever interfered with the property. The possession has always followed the deed, and there is nothing in the case which casts suspicion upon it, and it was therefore properly admitted. 1 Greenl. Ev., sec. 144.
The declarations of Josiah Wood, at the time of the execution of his will, are admissible, if at all, as part of the res gestee. The will is offered by the defendants as evidence of a devise of the property to them, and by the defendants as containing an implied admission that the plaintiff Abra and her sisters had some interest in this property, since the legacies to them are given only upon the condition that they should release any interest they could claim in the estate of Nathaniel Wood. The proof of what Josiah Wood said at the time of making the will is offered, not for the purpose of contradicting, adding to or varying the construction of the will. The language of the will is clear and unequivocal, and there is no question as to its meaning or legal effect.
But the plaintiffs insist that the fair inference to be drawn from the fact that the testator required a release from his legatees before the legacies should be paid, was that he was aware they had some legal claim to a share of their grandfather’s estate, and the evidence is offered merely to rebut the inference drawn from the form of his bequests. It does not, therefore, come within the rule prohibiting the admission of evidence to qualify or explain written instruments.
Besides, this is the case of a third person, not a party to nor claiming under this provision of the will; and the rule that oral evidence cannot be received to add to or contradict written instruments, does not apply to persons not parties to them, where they come in evidence incidentally. Woodman v. Eastman, 8 N. H. 359; Edgerly v. Emerson, 3 Foster 565. The case of Marshall v. Pierce, 12 N. H. 127, was a case of similar evidence.
If evidence of an act done by a party is admissible, his declaration made at the time, and tending to elucidate or give a character to the act, and which may derive credit from the act *453itself, will be admissible as part of tbe res gestee. Tbe making these bequests is regarded as material, because the condition attached to them is evidence of an admission of some title in the plaintiffs, which the testator was desirous should be released. The accompanying declaration, that they had no right, and his yielding to the insertion of the proviso as a precautionary measure, alone tended to give a character to that provision, which was before of uncertain purpose, and furnishes a natural explanation of its insertion. It seems to us, therefore, admissible under our decisions. Sessions v. Little, 9 N. H. 271; Hersom v. Senderson, 3 Foster 505; Gordon v. Shurtleff, 8 N. H. 260; Plumer v. French, 2 Foster 454; Mahurin v. Bellows, 14 N. H. 210.
The first instruction asked by the defendants, though in itself correct, was improper, because in this case other material facts did appear, as for instance the title of Nathaniel Wood, and his heirs, the relationship of Jesse Wood, the manner in which the house was built, &c. It was inapplicable to the case.
The second instruction is open to the same objection. There was far from being “ an absence of all other evidence,” as the request supposes. Where a party enters into land without pretence of title, his possession is presumed to be in subordination to the legal title, until the contrary is shown. Lund v. Parker, 3 N. H. 52. That presumption is not weakened by the fact that the occupant is a son of the owner, or that the father assists to build him a house on it, and lives on the opposite side of the road till his death.
So if a tenant in common, or co-heir, enters on or is in possession of lands generally, he shall be presumed to have entered, or have taken, or possessed them consistently with the common title of all; and though the possession be exclusive, the statute of limitations will not run against co-tenants; otherwise, if by some notorious act he claims an exclusive right. Jackson v. Tebbetts, 9 Cowen 241; Clapp v. Bromagham, 9 Cowen 551; Ricard v. Williams, 7 Wheat. 60. The instruction requested, reverses the rule of evidence which requires the party who claims title by adverse possession to satisfy the jury that he occupied under a claim of *454title. Lund v. Parker, 8 N. H. 51; 2 Greenl. Ev., see. 539; LaFrambois v. Jackson, 8 Cowen 603.
The third instruction was wholly immaterial to the case on trial. It would be good time to settle that question when the case should arise.
These instructions were, therefore, properly refused.
As the evidence of Josiah Wood’s declarations at the time of making his will should have been received, there must be
A new trial.