FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. office of the clerk of the county of Monroe on the 20th day of December, 1894, upon the decision of the court rendered at the Monroe Equity Term, dismissing the plaintiff's complaint, with notice of an intention to bring up for review upon such appeal said judgment, and an order made at the Monroe Equity Term on the 9th day of December, 1894, and entered in said clerk's office dismissing the complaint. The action was brought to obtain an adjudication that certain mortgages made by the plaintiff to the defendant Alvin E. Nye be set aside on the ground that they were usurious. W. E. Edmonds, for the appellant. W. A. Sutherland, for the respondents. WARD, J.: The judgment in this case dismissed the complaint " on the opening," with costs. What the opening was does not appear in the but the counsel seemed to assume upon the argupapers before us, ment that the complaint was dismissed because it did not allege a cause of action, and, if it did not, the appellant's counsel admitted the judgment should be sustained. In such a case a motion to dismiss the complaint on the opening is proper. (Sheridan v. Jackson, 72 N. Y. 170.) The complaint set forth the giving of three mortgages; the second mortgage embraced certain items of interest that had accrued on the first mortgage with the interest computed on the accrued interest, or what is usually termed compound interest. Upon the execution of the second mortgage the first mortgage was satisfied and discharged. The third mortgage contained, with other considerations, an amount of compound interest which was computed on the accrued interest of the second mortgage. Upon the last two mortgages an action of foreclosure was instituted in the County Court of Monroe county, in which the plaintiff was made a party. He did not defend the action, but attended the sale and forbade it. Compounding the interest and promising to pay it by the borrower is valid and binding if supported by a consideration. (Young v. Hill, 67 N. Y. 162.) Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. The The complaint shows a consideration for each mortgage. ground of this action is that the mortgages are void for usury on account of the compound interest inserted therein and should be set aside, but the complaint does not allege any fact which would constitute usury or make the mortgages void. Besides, if the defense of usury existed to these mortgages it should have been interposed in the action in which the mortgages were foreclosed. (Bartholomew v. Yau, 9 Paige, 165; Moses v. MeDivitt, 2 Abb. N. C. 47; Thompson v. Berry, 3 Johns. Ch. *395; affd., 17 Johns. 436; Vilas v. Jones, 1 N. Y. 274.) If the foreclosure had been defeated for usury in the mortgages the judgment in that action would have amounted to the destruction of the mortgages and been available as a defense whenever an attempt. should be made to enforce them. The judgment should be affirmed, with costs. LEWIS, BRADLEY and WERNER, JJ., concurred. Judgment affirmed, with costs. JEANNIE T. HARD, Appellant, v. CHARLES O. ASHLEY and Others, Respondents. Lost will In an action brought to partition the property of a decedent among his heirs, The proof needed to establish a lost will or to show its contents by parol evidence cannot be worked out by way of estoppel, based on the sustained objection of the opposing party to evidence offered in regard to the same. The destruction of the will of another person without authority is a crime, and a party will not be convicted of such an act upon suspicion or surmise, but only upon substantial proof thereof. The law never assumes a will to have existence in the absence of proof of that fact. 88h 13 53ad 107 88h 103 167a 168 FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. If it be established upon the trial of an action that a decedent made a will, such as the statute permitted him to make in order to dispose of his property, and that it was last seen in the possession and under the control of the decedent, and at his death, after proper search, no will can be found, the presumption is that the will was destroyed by the testator animo revocandi, and this presumption stands in the absence of positive proof to the contrary. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will; he must go further and show by the facts and circumstances that the will was actually and fraudulently destroyed. APPEAL by the plaintiff, Jeannie T. Hard, from a judgment of the County Court of Monroe County in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 22d day of October, 1894, upon the verdict of a jury dismissing the plaintiff's complaint upon the merits, and also from an order entered in said clerk's office on the 31st day of July, 1894, denying the plaintiff's motion for a new trial made upon the minutes. William A. Sutherland, for the appellant. John A. Barhite, for the respondents. WARD, J.: This action was instituted in the Monroe County Court to partition certain premises owned by Eliza Ashley of Rochester, situate in that city. Eliza Ashley died on the 17th of April, 1893, and the plaintiff and the defendants, Charles O. Ashley and John H. Acker, were her only heirs at law. The issues made by the pleadings were whether Eliza Ashley died intestate. The defendants claim under an alleged will of the deceased which deprived the plaintiff of any interest in the property. At the close of the evidence the plaintiff's counsel moved for the direction of a verdict for the plaintiff, which the court denied, and the jury rendered a verdict for the defendants. Upon the pleadings and conceded facts at the trial the plaintiff was entitled to a verdict unless a will was established made by the deceased, preventing. There was no such will established upon the trial. A witness was examined on defendants' behalf, who testified, in substance, that he drew a will for the deceased from a memorandum given him; that he signed the will as a witness at her request; that his father was one of the witnesses; that the will was read over FIFTH DEPARTMENT, JUNE TERM, 1895. to the deceased and she signed it; other witnesses referred to the fact that a will was prepared, and that they had seen a will, and there was talk about a will in which the deceased participated, but the proof came far short of establishing an instrument that would devise real estate, executed and published according to the forms required by the statute. It is true that proof of a lost will is necessarily secondary, and the law accepts the best evidence that the nature of the case admits of as to its valid execution and contents, and in such a case as this the defense may establish the will by a single credible witness (Harris v. Harris et al., 26 N. Y. 433), yet it must be shown that the will was executed with all the formalities required by the statute, and that the testator was of sound mind and under no restraint. There was an entire absence of proof as to the contents of the assumed will, nothing whatever to show that the plaintiff's apparent title as an heir to one-third of the property sought to be partitioned has been impaired or destroyed. The case, therefore, of the defendants was not established, and it was error not to direct a verdict for the plaintiff. The defendants seek to excuse this omission by alleging that the proof of the execution of this will and its contents was excluded by the court upon the plaintiff's objection, and seem to assume that the plaintiff is estopped thereby, and deprived of the benefit of the objection of the want of such testimony here. The court sustained the objection to certain evidence offered by the defendants, which, if admitted in connection with sufficient other evidence (which the defendants did not offer to show), might tend to establish the will, but the trial court regarded the objection as well taken, and ruled in favor of the plaintiff, and the soundness of that ruling is not before us for consideration. It would be a novel proposition indeed that the needed proof to establish a will or prove its contents by parol could be worked out by way of estoppel, founded on the sustained objection of the opposing party ; but assuming that it had been established, that the decedent had made in her lifetime a will excluding the plaintiff from all rights in the property, a further difficulty is presented which has been earnestly pressed upon our attention. Upon the death of Mrs. Ashley and after thorough search made HUN-VOL. LXXXVIII. 14 FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. no will was found. The last we learn of this alleged will is from the witness, Edward Webster, who says he had drawn a will for the deceased before, and in her last sickness she sent for him about a week before she died. She was confined to her room, and he adds: "She called a young lady to get the will and told her where it was and she went and brought it in. I don't know anything as to where it was except from something they said; I think she told the girl that it was in the bureau. Mrs. Ashley was up stairs at that time; this bureau was in another room, but I don't know whether it was up stairs or not. The girl returned with the will and I examined it." The will was left with the deceased or under her control. This was the last seen of the will so far as the testimony goes. The plaintiff was the granddaughter of the deceased, and she with one or two other relatives of the deceased took care of her for several weeks previous to her death. The defendant Charles O. Ashley, and his daughter and other members of the family, were in attendance more or less upon the deceased during that time. Evidence was given by the defendants tending to show that the deceased had some objection to the plaintiff being there at that time, and that the plaintiff had made expressions of disrespect towards the deceased and had written some letters to the stepmother of the plaintiff ridiculing the deceased, and the deceased had said that the plaintiff was there only for the loaves and fishes, but she would be disappointed. The plaintiff's stepmother was also in attendance upon the deceased, having gone there before the plaintiff, and the plaintiff had expressed in her letters to this stepmother that she hoped that she would get well paid or get the property of the deceased for taking care of her. It appeared also from the defendants' evidence that at one time, some time prior to the death of the deceased, what was called a will was seen in a family Bible that was in one of the rooms of the house. That was before the will was seen by Webster as stated, and that at some time the plaintiff was seen reading this Bible, or looking through it, but it did not appear that the will was there at the time. The plaintiff was seen at one time looking through a book of poems, and the trial court charged the jury that there was evidence showing that the will had been seen in this book of poems. This statement was a misdirection by the court, there being no such evidence in the case. The plaintiff testified that she never saw the will. The same state |