The opinion of the court was delivered by

— The two questions that arose upon the trial of this cause are well stated by the plaintiff in error: 1st. Was the will of 1833 valid? and if it was not, then, 2d. Was the plaintiff below the legitimate heir of Captain Kenyon ?

And the first of these questions is represented as embracing two points: 1st. Fraud practised by the defendant: and 2d. The incompetency of the testator.

There was evidence on both sides as to the competency of Captain Kenyon to make a will, none of which, and no instructions respecting which, are complained of; but the declarations of the testator that he had made a former will in favour of his daughter, and the declarations of Mrs. Ashbridge that she had got possession of that will, and meant to destroy it, and the observations of the judge on that evidence, are the matters assigned for error.

The declarations of Captain Kenyon were evidence on the second question stated, the legitimacy of the plaintiff. She was legitimate if the'cap tain were the husband of her mother, and to establish marriage in civil cases, other than actions for seduction, declarations and conduct of parties are always admitted. Mr. Greenleaf tells us, vol. 2, § 462, on the authority of several cases, English and American, that the inference of marriage of persons may be drawn from the baptism, acknowledgment, and treatment of their children by them as legitimate. And again, in vol. 1, § 106, that family conduct, such as the tacit recognition of relationship, and the disposition and devolution of property, is admissible evidence of pedigree; and he quotes Chief Justice Manssteld in the Berkeley Peerage Case, 4 Camp. 416, that if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate.

Captain Kenyon’s uniform treatment and recognition of Matilda as his daughter, and his declaration that he had made his will in her favour, were facts that she could not properly be deprived of, in a case where her legitimacy was questioned.

*161But his declaration was evidence also, as bearing on the alleged fraud of Mrs. Ashbridge, in procuring him to make a second will in. her favour. It was communicated to her, and in connection with her answer, it became evidence against her, if relevant to the issue. And was it not relevant to an issue of fraud, to show by her own confession, that she had got possession of the former will, and meant to destroy it ? She did not allege that she had got the possession with her brother’s knowledge or consent, but she had “ found the will in a book in the closet, where she little thought to find it. She had it in her bosom. I asked her (said the witness) to let me see it. She said, no, she would let no one see it. I asked her who he had left his propei’ty to, she said not to them he ought to have left it to, and that she was going to destroy it.”

This evidence was not put to the jury as proving the contents-of the former will, nor as establishing it as ground for the plaintiff’s recovery; on the contrary, the learned judge told the jury expressly that the former will could not be set up to enable the-plaintiff to recover upon it; but it was part of the res gestee, and as such properly admitted. It was not for this good lady, after-such declarations, to deny the existence of the former will. Nor-would it have been proper for the court to exclude from the jury a knowledge of the liberties she was taking with it, for they might think that the suppression of that will had something to do with the production of a will just after, by which all her brother’s, estate was devised to her.

When it is considered that she and her brother were not on good terms — that she had to be looked for three days before she-could be brought to his sick-bed — that, when she came, her presence was a distress to him — that he was sinking with a malady that involved his brain — that she took possession of him and his-, house, destroyed the will he had made, and procured another to-be executed after he was speechless, — and that, a will in her favourwhich contradicted all the declarations of his life — when such a case was presented for the consideration of a jury, all her acts- and declarations in the premises and about the matter, become-relevant and important evidence, as bearing on the question of whether the second will was indeed the will of Captain Kenyon,, or a mere fabrication of her own.

In questions of fraud great latitude of proof is always allowed,, but this evidence was competent on the strictest principles of the-res gestee. How is a party charged with fraud to be tried, if not', by her acts and declarations about the subject-matter? It was-not the pux-pose of this evidence to affect Mrs. Ashbridge, as spoliator, with the contents of the former will. That instrument, for all purposes of the plaintiff’s title, was out of the question. If the plaintiff was not the legitimate daughter of Captain Kenyon, 3he could not recover: and if she were, she could recover only *162because the last will was void, and the law cast the inheritance upon her — not because the former will was established. The trial was not, therefore, between two wills, but between a descent cast and an alleged will. The impeachment of the latter was the great point of the cause, and the evidence objected to was admitted as bearing on that point. What was said and done about the former will, was part of the res gestee, and served to throw light on the competency of the testator, and the character of the testamentary act under which the defendant claimed.

Nor was the evidence improperly discussed by the judge. He did not give it any binding effect, but he told the jury they might presume from it the existence of the former will. Surely, such a presumption might safely have been adopted by either court or jury, if the witness was believed who proved Mrs. Ashbridge’s declarations. But the fact, presumptively established, that there was a former will, weighed heavily in the balance against the will •■set up by Mrs. Ashbridge. The heir at law was entitled to the benefit of the fact. She got no more than was her due, and she ;got that according to law.

The judgment is accordingly affirmed.