delivered the opinion of the court.

It seems to have been determined in England, on full consideration, that where the execution of an instrument is proved by proving the handwriting of an attesting witness who is dead, it is not admissible to rebut the presumption of due execution which arises from the name of the subscribing witness having been placed on the instrument, by evidence of declarations of such subscribing witness tending to show that the instrument was a forgery. Stobart v. Dryden, 1 Mee. & W. 615. A contrary doctrine has been announced by several courts in the United States. McElwee v. Sutton, 2 Bailey, 128; Losee v. Losee, Exr., etc., 2 Hill, 609; Reformed, etc., v. Ten Eyck, 1 Dutch. 40; Boyland v. Meeker, 4 Dutch. 274; Otterson et al. v. Hofford et al., 36 N. Y. 129.

The question is undecided in this State, and its decision is not called for in this case; because, whatever may be the proper determination of that question, it must be true that evidence of declarations of a deceased subscribing witness, whose handwriting has been proved, if admitted, must be confined to declarations as to the circumstances of attestation, *140and that declarations as to the contents of the paper are not admissible. The reasoning to support the admissibility of declarations of a deceased subscribing witness, to rebut the presumption of due execution arising from his name being found on the paper, has no'application to evidence of declarations as to the contents of the paper. The evidence of the handwriting of a deceased attesting witness is to establish the execution of the instrument, and not its character or contents. The only instances in which declarations of a deceased subscribing witness'have been admitted were where they tended to prove fraud or forgery ; in other words, where they related to the circumstances of the execution of the instrument. The purpose for which such declarations have been admitted was to contradict the import of the attestation of such witness. But the attestation imports nothing relative to the contents or character of the instrument, — as being a will, or deed, or other instrument. Therefore, declai’ations of a deceased subscribing witness are not admissible to show the nature or contents of the paper he subscribed.

It follows that it was not erroneous to refusé to admit the evidence of the witnesses, Chalmers and Treadwell, as to what Moore said as to the nature and subject-matter of the instrument of writing executed by Edward Wood, and attested by him as a subscribing witness.

The principle of the. maxim. Omnia prcesumuntur in odium spoliatoris, as applicable to the destruction or suppression of a written instrument, is that such destruction or suppression raises a presumption that the document would, if produced, militate against the party destroying or suppressing it, and that his conduct is attributable to this circumstance, and, therefore, slight evidence of the contents of the instrument will usually, 'in such a case, be sufficient. There is great danger that the maxim may be carried, too far. It cannot properly be pushed to the extent of dispensing with the necessity of other evidence, and should be regarded “as merely matter of inference, in weighing the effect of evidence *141in its own nature applicable to the subject in dispute.” 2 Best on Ev., sect. 412 et seq.

The doctrine is, that unfavorable presumption and intendment shall be against the party who has destroyed an instrument which is the subject of inquiry, in order that he may not gain by his wrong. But where there is express and positive evidence, there is no place for presumption or inference. It is only in reference to the contents of a paper destroyed or withheld that the maxim can have application ; and where the contents are proved,(there is no occasion for resort to the maxim. In this .case, if the evidence of Blanton was sufficient to satisfy the jury as to the terms of the will in dispute, a resort to the maxim under consideration was unnecessary. If that evidence was not sufficient, the principle of the maxim is not sufficient to uphold the verdict.

It is impossible to say that the fourth instruction given to the jury, at the instance of the proponent of the will, did not seriously mislead the jury to the prejudice of the contestants of the will. It was not a proper guide for the jury. It is too broad and indefinite in saying that ‘ ‘ every thing may be presumed against the destroyer of the will.” It should have been limited to intendment and presumption as to the terms of the will, if given at all; but it is difficult to see of what use it was, except to excite the prejudices of the jury and make their indulgence unlimited. It is true that liberal instructions were granted at the instance of the contestants of the will, but none to cure the error of the instruction for the proponent of the will. We do not find fault with any of the other instructions ; and, without any remark upon the evidence, reverse the decree and remand the cause for a new trial.