BY
Such evidence is improper, as it is not pretended by the counsel, that they mean to prove the contents of that will, and to rest their defence upon it. On the contrary, they rely altogether, as they avow, upon the validity of the will executed on the 24th of August 1S17; and consequently the question respecting its validity cannot in any manner be fairly affected by the evidence offered in respect to the will of 1814. The only tendency of such evidence would be to prejudice the minds of the jury, and to lead them from the question which they have to decide.
The defendant's counsel also offered evidence to prove that the uniform declarations of the testator in favour of the defendant, from the year 1802, had been consistent with the disposition made of his property by the will of 1817. This was objected to, as being inapplicable to the only question in the cause, — the competency of the testator to make his will; the counsel for the" plaintiffs disavowing any intention to charge the defendant with fraud, or improper conduct in obtaining the will. Parol evidence to vary or explain a deed or will, except in a case of a latent ambiguity, or of fraud in obtaining a will, is inadmissible. 1 Johns. Eng. Ch. 231, 234 : 2 P. Wms. 214; Thomas v. Thomas, 6 Term R. 671; 1 Fonbl. Eq. 70; 2 Vern. 624; Smith v. Fenner [Case No. 13,-046]; 2 Johns. 31; 2 South. [5 N. J. Law] 655.
On the. other side it was insisted that, up-' on the question of competency, it might be very material to show that the testator had long contemplated the disposition of his property in the manner designated .by his will; as in that case, a smaller grade of memory might be requisite, than would be if such a disposition had not been previously arranged in the mind of the testator. Harrison v. Rowan [Case No. 6,142], in this court; 1 Yeates, 108; 2 Yeates, 46; 1 Hen. & M. 476, 478; 3 Hen. & M. 502, 510; 1 Bay, 335.
The declarations of a party to a deed or will, whether prior or subsequent to its execution, are nothing more than hearsay evidence; and nothing could be more dangerous than the admission of it, either to control the con-, struction of the instrument, or to support or destroy its validity. If the evidence is offered in support of the instrument, it could only have that effect upon the supposition of a uniform consistency of those declarations, not only with the instrument itself, but with the secret intentions of the party, at all times after those declarations were made; and yet how unsafe a criterion would this be, when most men will acknowledge the frequent changes of their intentions respecting the disposition of their property by will, before they have committed them to writing. The uniform consistency of those declarations, is the chief ground upon which the whole argument in favor of the evidence is rested; and yet, if the evidence be admitted at all, the plaintiffs would be at full liberty to prove opposing declarations of the testator at other times; and thus a door would be open to an inquiry in no respect pertinent to the main subject of investigation, but mischievously calculated to . perplex and to mislead the jury. That such evidence has sometimes been given, is proved by many of the eases read by the defendant's counsel; but it would be very unsafe to consider those instances as laying down a rule of law, since, in none of them, was an objection made to the admission of the evidence, so as to submit its competency to judicial inquiry and decisions. The general rule of law is against the evidence, and no case has been cited showing an exception to it, unless when it was offered to repel a charge of fraud, or circumvention of the devisee in obtaining the will. But in this case the plaintiffs’ counsel disavows any intention to impute to the defendant a charge of this sort. The evidence is therefore inadmissible.