Estate of Kidder

Morrison, C. J. This is an appeal from an order admitting to probate a destroyed will. The petition alleged the execution of the will, and that it was never revoked by the deceased; that on a day and at a place named, and without the knowledge or consent of said deceased, the will “was fraudulently burned [489]and destroyed by and through the neglect and inattention of one Laura Stevens, who was then and there the nurse and sole attendant upon said decedent, and that said Mary Kidder died without any information or knowledge of the facts of said burning and destruction thereof.” The petition was demurred to, on the ground that the facts constituting a fraudulent destruction are not stated, that it does not appear by whom the alleged will was destroyed, nor what acts contributed to its destruction, nor how the negligence or inattention of the attendant brought about the destruction. The demurrer was overruled.

This proceeding was under section 1339 C. C. P., which provides that “ no will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the life-time of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.” The ground relied upon by petitioner in this case was that the will had been fraudulently destroyed in the life-time of the testatrix, Mary Kidder. The averment in that regard in the petition is, “ that said last will and testament was fraudulently burned and destroyed by and through the neglect and inattention of one Laura Stevens, who was then and there the nurse and sole attendant upon said decedent,” and the finding of the court upon the point is, “ that when said will was brought to her (the testatrix) she partially withdrew it from the envelope, and then returned it, there and then allowed it to fall from her hand into the fire, when it was wholly consumed. That said destruction of said will was wholly unintentional on the part of said Mary Kidder, * * * and that the wife of Ira Stevens (the nurse) was present at the time said will was burned, and saw it fall into the fire, but did not make any effort to preserve it, and did not inform said Mary Kidder that it had fallen into the fire, or was burned or destroyed.”

It will be borne in mind that the petition was for the probate of a will alleged to have been fraudulently destroyed during the life-time of the testatrix, and the first inquiry is, Do the allegations in the petition show a fraudulent destruction of the will ? It is true that it is charged that the will was fraudulently burned and destroyed “ by and through the neglect and inattention of