Griffiths v. Johnson

WILBUR, J.

This is an appeal from .an order admitting a will of Delia M. Sweetman, deceased, to probate, as a lost or destroyed will. The main question at issue in the case is whether or not the will was in existence at the time of the death of the testatrix. The will was last seen in the possession of the testatrix in November, 1916, two and a half months previous to her death. The proponent of the will relies upon declarations made by the testatrix during that period to establish its continued existence, to overcome the presumption of its destruction with intent to revoke, arising from the possession of the will by the testatrix and the inability to find it after her death.

[1]

The rule is thus stated in the Encyclopedia of Evidence: “A will last seen and known to have been in the possession of the decedent, which cannot be found after' his death, will be presumed to have been destroyed by him and with an intention of revoking it, since the law always presumes in favor of the innocence of an act, and any other inference would involve a finding of a wrongful or fraudulent destruction of the will by a third person” (14 Ency. of Evidence, 440; see, also,

Matter of Cunnion,

201 N. Y. 123, 126, [Ann. Cas. 1912A, 834, 94 N. E. 648];

In re Keene’s

Estate, 189 Mich. 97, [Ann. Cas. 1918E, 367, 155 N. W. 514] ;

In re Miller’s Will,

49 Or. 452, [124 Am. St. Rep. 1051, 14 Ann. Cas. 277, 90 Pac. 1002, 1004];

Rape

v.

Cochran

(Tex. Civ. App.), 217 S. W. 250, 40 Cyc. 1281). The admissibility of such testimony is conceded by both parties, for each relies in part upon her

[29]

declarations to support their respective claims. The proponent of the lost or destroyed will, which we will hereafter call the Johnson will, sought to prove that the will had been destroyed after the death of the testatrix by F. A. Berlin, the attorney who proposed an earlier will of testatrix for probate, which we will hereafter refer to as the Berlin will. The latter contended that all the evidence with relation to the execution and existence of the Johnson will is a pure fabrication. The trial court found that the Johnson will was properly executed and that it continued in existence up to the time of the death of the testatrix, and that it revoked the Berlin will by implication, as it disposed of all the property of testatrix. The court also found that F. A. Berlin did not destroy the Johnson will after the death of the testatrix. The court also specifically found that the allegation of the proponent of the Johnson will that the Johnson will was destroyed by a person or persons unknown to the Johnsons prior to the death of the testatrix was not true. There is no dispute as to the execution of the Berlin will and it is conceded that the will produced in court was executed by the testatrix, but it was denied probate because not her last will. The Berlin will was executed on the tenth day of May, 1915. It was drawn by Mr. F. A. Berlin, who for some twenty years had been the attorney for, and employer of, the husband of the testatrix. By the terms of this will all the property of the deceased was left to her husband with the exception of a set of mahogany furniture, which was bequeathed to Mr. Berlin. The husband was named as the executor thereof.