Duffill v. Duffill

CRAIL, P. J.

This is an appeal from an order denying probate of an alleged lost and destroyed will. Appellant, the proponent of the will, presents several questions which are framed in language satisfactory to herself and the obvious answers to which are in her favor. But the fact remains that the case is almost exactly on all fours with the case of

Estate of Ross,

199 Cal. 641 [250 Pac. 676], and is clearly governed by the law of that case. See, also,

Estate of Smith,

140 Cal. App. 508 [35 Pac. (2d) 335];

Estate of Vetter,

110 Cal. App. 597 [294 Pac. 438].

Appellant relies largely upon the

Estate of Sweetman,

185 Cal. 27 [195 Pac. 918], but that part of the Sweetman case upon which she relies was expressly overruled in the

Estate of Ross, supra.

Appellant contends that where a will, known to have been in existence at a time prior to the death of testator and in his possession at that time, cannot be found after his death, “the presumption of destruction,

animo revocandi,

is overcome by the continuous declarations of the testator to various friends that he had a will, and that he kept it in a metal strong-box in his house, and that said box almost immediately (about two hours) after testator’s death passed into the possession of his widow who was interested in his estate (which is entirely the separate property of testator) adversely and that by concealing the will said widow will inherit as an heir at law a larger portion of the estate than she is provided for in the will”. What the appellant seems to forget is that the presumption of revocation is in itself evidence of a substantial nature and that whether this presumption is overcome by other evidence depends upon the weight of the evidence. It is the province of the fact finder to determine where the preponderance of evidence lies, and this court on appeal will not substitute its opinion for that of the trial court as to the

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