In Re Estate of Coolman

CRAIG, J.

The proponents of an alleged lost or destroyed last will and testament of John H. Coolman, deceased, appeal from an order and decree denying probate of the same and directing the issuance of letters of administration.

The facts of the case are ' not controverted. It appears that the testator called at the offices of his counsel on No

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vember 14, 1928, and discussed the matter of altering his will, which he then had in his possession; that on the following day he again visited said offices, at which time counsel observed the will in his possession. He then suggested that he desired making “some little amendments” thereof. Two days later he contracted illness which on November 22d proved fatal. At some time between 2 o’clock P. M. and 6 o’clock P. M. of November 20th, the deceased had stated to a relative that he intended making changes in his will, and “that he was not satisfied with his will”, that “he intended to make some more changes and they were to be beneficial to me”. At about 7 o’clock P. M. of the same day he had passed into a coma from which he did not revive. Following his demise certain of the decedent’s clothing, and his will, were missed, and subsequent search failed to reveal them. Dr. Lloyd J. Taylor, one of the three contestants, was unable to recall a conversation in which he had admitted that the clothing was taken to his home. This testimony, however, was later retracted in part by the admission that they were removed to his residence without his knowledge, and there was positive testimony from other sources that he had admitted having them in his possession and 'had stated “that there was nothing in the pockets”. Nevertheless, it is conceded that seven days prior to his death the deceased exhibited his will, and that within a few hours before unconsciousness overcame him he appeared rational, and spoke of making alterations therein.

The trial court found: “That from the facts that the will w^as last seen in the possession of deceased; that he intended to make changes therein; and that said will was not in existence at the time of his death, the court finds that it is true that the alleged last will and testament ’was by deceased destroyed prior to his death, with the intent on his part to revoke the same.” This finding is founded solely upon the presumption which arises from the fact that the will was not discovered. The court further found that it was not shown to have been fraudulently or by public calamity destroyed in the lifetime of the testator. Coolman had frequently expressed an intention to die testate, had made various wills and alterations thereof, and one week preceding his death took from his pocket the will in question. He then stated that he did not desire