Byrd v. . Collins

Allen, J. There are several exceptions in the record, but all of them are immaterial, if his Llonor ruled correctly in excluding the evidence as to the contents of the lost will, as we think he did. The testatrix may have been mistaken as to the place where she deposited the will, or, if she was not, and it was taken on the day of the hog killing by one of the three persons who went iñ the meat-room, it may still be in existence, and there was no evidence of any search of her premises or among her effects or of the premises or effects of either of the three persons, nor was John Bams or J. W. Bullock, two of them, examined as a witness. The authorities are all to the effect that before parol evidence can be offered to prove the contents of a paper, it must be shown that the most diligent search has been made for the alleged missing instrument. In Eure v. Pitman, 10 N. C., 371, it was said: “To entitle a party to give parol evidence of the contents of a will alleged to be destroyed, where there is not sufficient evidence to-warrant the conclusion of its absolute destruction, the party must show that he has made diligent search and inquiry after the will in those places where it would most probably be found if in existence.” To the same effect, Scoggins v. Turner, 98 N. C., 135. *644 In 3 Redfield on ."Wills, page 15: “But it must in all cases be shown that an exhaustive search has been made for such missing will in all places where there is the remotest, possibility that it could be found, before any secondary evidence can be received of its contents.” The question here presented was fully considered and the authorities reviewed in Avery v. Stewart, 134 N. C., 291. It was held in that case to be error to' admit parol evidence of the contents of a paper when a witness had testified, “It is lost. I cannot find it,” which is stronger than the evidence in this case, and the Court then applied the rule that, “If tke instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it' in the place where it was most likely to be found, if the nature of the case admits such proof. What degree of diligence in the search is necessary it is not easy to define, as each case depends much on its peculiar circumstances; and the question whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents is to be determined by the court and not by the jury. But it seeins that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest and which were accessible to him.” 1 Greenleaf Ev., sec. 558 (16 Ed., sec. 563b). We are of opinion, on the whole record, there is no error. No error.