Estate of Flood

TUTTLE, J.

This is an appeal from a judgment admitting a lost will to probate, and appointing an executor.

Appellant is the widow of the decedent, Emil Flood. By the terms of said will she will receive $1000, plus one-ninth of the residue of the estate. If her husband died intestate, she would succeed to one-half of his property.

The will was admitted to probate under the provisions of section 350 of the Probate Code, which reads in part as follows:

“No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator, or shown to have been destroyed fraudulently or by public calamity in the lifetime of the testator, without his knowledge. ...” Appellant’s sole contention is that the evidence is insufficient to justify the trial court in making the order.

The burden of proving that the will which respondent seeks to probate was either in existence at the time the testator died, or had been destroyed fraudulently or by public calamity without his knowledge during his lifetime, was upon respondents as proponents of the will.

(Estate of LeSure,

21 Cal. App. (2d) 73 [68 Pac. (2d) 313].) There is no suggestion of fraud in the case, nor proof of a public calamity. The only question is whether or not there is sufficient evidence in the record to justify a finding that the will was lost, and that it was in existence at the time of death.

[811]

This may sound contradictory, but it is obvious the words ‘1 in existence” import “unrevoked.”

On September 9, 1938, the testator was visiting relatives at Newman Grove, Nebraska. His wife was then visiting at a point further east. On that day he called upon an attorney in said town, and executed a will, a carbon copy of which was retained by said attorney. The wife of testator (appellant herein), returned to Nebraska on October 1, 1938. The following testimony by appellant states what took place just prior to their departure to California:

“Q. Did anything take place there at all, at his brother’s place there, in regard to a Will? A. Yes. Monday morning he was all ready to go, the car was packed, I was dressing, and he tossed a paper over on the bed and he said—he said, ‘Here’s my Will’. I said, ‘What Will?’ ‘My Will, here’s the Will,’he said. I said, ‘ What Will ? ’ ‘My Will.’ I tossed it back to him, I said, ‘I can’t read that now. Take care of it; put it away and take care of it.’ And that is the last I saw of it. ’ ’