Estate of Boyer

MOORE, P. J.

The question for decision is whether the evidence supports the finding that the estranged wife without the knowledge or consent of decedent husband fraudulently destroyed his last will and testament.

Decedent, John I. Boyer, was married to appellant on February 26, 1938. They were separated December 15, 1941; she sued him for support and thereafter lived separate and apart. On June 5, 1942, a decree for the support and maintenance of Alicia was made by the superior court requiring the testator to pay his wife seventy dollars monthly and certain expenses for the maintenance of her apartment. Twenty-five days following such decree decedent executed a will which expressly excluded appellant from all participation in his estate. After the separation testator resided in and had his office on the ground floor of an apartment building in Long Beach while appellant maintained an apartment on the fifth floor of the same building. During all of the time of their estrangement and residence in the same building appellant retained a key to her husband’s office and had access thereto in his absence. On the third of February, 1943, testator entered a hospital where he died on February 21, 1943.

Upon proof of the due execution of the will and of the circumstances surrounding its disappearance the court found (1) that at the time of testator’s entry into the hospital his will was in his office where he had placed it for safe-keeping; (2) that it had not been revoked by testator in whole or in part; (3) that during his confinement in the hospital, without his knowledge or consent, or promptly after his death, appellant entered his office and fraudulently destroyed the will. Basing her argument primarily upon the fact that there

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was no witness who testified explicitly to having witnessed the destruction of the will and upon the presumption of her honesty and fair dealing, she now contends that the evidence is not sufficient to support the finding of the will’s fraudulent destruction.

In following our discussion it is to be borne in mind that (1) in our review of the evidence all conflicts must be resolved in favor of the judgment; (2) all legitimate inferences must be indulged to uphold the finding; (3) the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence which will support the finding, and (4) the court has no power to substitute its deductions for those of the trial court when different inferences may reasonably be drawn from the facts proved.