NOUESE (Paul), J. pro tern.,* Dissenting. I concur in
the majority opinion insofar as it holds that the so-called second codicil was executed and witnessed in the manner required by law.
I dissent from the majority opinion insofar as it holds that the evidence herein is sufficient to uphold a finding that the original will and first codicil were in existence at the time of the testator’s death, and I am further of the opinion that the findings of the trial court are so conflicting as not to constitute in fact a finding that said will and codicil were in existence at the time of the testator’s death.
There is little conflict in the evidence here and the evidence establishes the following pertinent facts:
The original will and first codicil were both drawn by decedent’s attorney and executed by decedent in March of 1950. By their terms the contestants, who are the children and natural objects of the testator’s bounty, were each given legacies of $1,000, and the balance of the testator’s substantial estate was devised and bequeathed to strangers to his blood.
The second codicil was executed in June, 1953. It referred to the original will and the first codicil and substituted two friends as legatees in place of one of the charities who were legatees under the original will and codicil.
[562]At the time of the execution of the original will and at the time of the execution of the first codicil, the executed originals and the first carbon copies were handed by the attorney, who drafted them and who was one of the witnesses thereto, to the testator. After the date of the execution of the first codicil, the original will and copy thereof and the first codicil and the copy thereof remained in the possession of the testator and were never seen by any other person.
On October 1, 1953, the testator asked his attorney to be sure, that the terms of his will were carried out. Between that date and the date of his death on the 26th of November, 1953, he made no mention of his will. After the testator’s death a search was made for the original will and codicil, copies of which had been retained by the attorney who drew them, but although this search was very thorough, neither the will nor the first codicil nor the copies thereof, which had been retained by the testator, could be found. The second codicil and a copy thereof, together with numerous other papers relating to the decedent’s business affairs, and the keys to his safe deposit box, were found in a satchel which the testator had in his possession at the time he drew the second codicil to his will (this was drawn in a sanitarium) and which he hád kept with him from that time until his death.
The contestants were residents of an eastern state and at no time had any means or opportunity of securing possession of the will and first codicil or destroying them. The only persons who had the means of access to the will were persons who either had nothing to gain or lose by destruction of the original will or codicil, or who stood to benefit by their continued existence.
The evidence further shows that the decedent had divorced his wife, the mother of the contestants, many years before his death and had left his first wife to raise and care for the contestants; that much of the last year of his life was spent in sanitariums and hospitals and that during the nearly two months that elapsed between his last mention of his will and the time of his death, he was a very ill person and must have known that death was impending.
The respondents offered the first will and codicil for probate as lost wills and it was incumbent upon them to prove that these wills were in existence at the time of the testator’s death, or that they had been destroyed fraudulently or by public calamity in the lifetime of the testator without his knowledge (Prob. Code, § 350).
[563]From the facts which were established by uncontradieted evidence that the wills in question were in the possession of the testator from the date of their execution; that they were never in the possession or seen by any other person and that they could not be found at his death, the presumption arises that they had been destroyed by the testator (Estate of Ronayne, 103 Cal.App.2d 852, 856 [230 P.2d 423]; Estate of Bristol, 23 Cal.2d 221, 224 [143 P.2d 689]; Estate of Johnston, 188 Cal. 336, 339-340 [206 P. 628]). This preseumption may be overcome by other evidence, direct or indirect. If there is evidence upon which an inference contrary to the presumption may reasonably be drawn, and the trial court draws that inference, then it is the duty of this court to uphold the findings of the trial court as to the existence of the will at the time of death (Estate of Ronayne, supra, p. 857; Estate of Bristol, supra, pp. 224-225; Estate of Moramarco, 86 Cal. App.2d 326, 334 [194 P.2d 740]).
The inference that the will was in existence must, however, be based upon facts from which the inference can reasonably be drawn. It seems to me that the facts in this case do not furnish the basis for such an inference. The only facts which it is claimed furnish a basis for the inference are that the second codicil, which refers to the lost wills, was found among the testator’s papers; that he had mentioned his will approximately two months before his death; that he had, on numerous occasions after the drafting of the original will, stated that he intended to leave the greater part of his estate to the charitable institution which is the chief beneficiary under the lost will and codicil, and had mentioned as recipients of his bounty the two persons who are made legatees by the second codicil; that he felt an animosity towards his children, the contestants, because of their failure to loan him money upon request, although this animosity was not expressed during the last year of his life. These facts do not, in my opinion, furnish any basis for the inference that the wills were in existence at the time of death, and therefore, cannot stand as evidence against the presumption that he had destroyed them. The most that can be said for them is that they constitute evidence that the wills were in existence as late as October 1, 1953, some two months before his death. If these facts are a sufficient foundation for the inference that the will and first codicil were in existence at the date of death, then mere proof of their execution would likewise furnish a basis for that inference. The only difference in the foundation [564]is that of time. If the wills had been executed on October 1, 1953, and could not be found two months later, at the time of death, it certainly could not be contended that the provisions of section 350, Probate Code, had been met. Yet under these facts, the proof of their existence on October 1st, would have been conclusively established by direct evidence and that is the only fact which the indirect evidence offered here establishes. It is the law that the presumption declared by subdivision 32 of section 1963, Code of Civil Procedure, that a thing once proved to exist continues to exist, will not aid one who seeks to prove a lost will (Estate of Ross, 199 Cal. 641, 647 [250 P. 676]). How, then, can an inference be used to accomplish this same purpose? Yet that is exactly what has been done here, for, as I have pointed out, the evidence which is the alleged basis for the inference only proves the existence of the wills on October 1st, nearly two months prior to death.
When the facts depended upon here to establish the existence of the wills at the date of death are considered in the light of the further admitted facts that the testator was, during the approximately two months that elapsed since his last mention of his will and his death, faced with the knowledge of impending death, and the fact that his will and codicil, for all practical purposes, disinherited his natural children, whose care and maintenance he had left to their mother, they cannot constitute any basis for the inference mentioned, but support the inference or presumption, whichever it may be, that he himself had destroyed his will.
The present case seems to me to be distinguishable on the facts, from the cases relied upon by the proponents. In the Estate of Bristol, supra, 23 Cal.2d 221, the lost will admitted to probate was a natural will and there was opportunity for, and motive for it to have been destroyed by a person adversely affected by it, and shortly before his death, the testator had taken actions from which it could be reasonably inferred that his will was then in existence. It was upon the basis of these facts that the Supreme Court held that the finding of the trial court that the will was in existence at the time of death would not be disturbed by the appellate court.
In the Estate of Moramarco, supra, 86 Cal.App.2d 326, the will was a natural will and its destruction would have enabled the Italian government to expropriate a substantial portion of his estate, a situation which the testator had expressed himself as desiring to make impossible. The testator’s papers [565]had, shortly before his death, been moved from one place of safekeeping to another and it was probable that in the moving the will in question had been lost and the testator had within three days of his death mentioned his will as in existence.
In the Estate of Ronayne, supra, 103 Cal.App.2d 852, the testatrix, two days before death, had stated that the alleged lost will was in her home but that she was not sure where, and upon her death her husband, who was left but $100 by the will, took possession of the home and all its contents and made search for the will impossible.
In the Estate of Reynolds, 94 Cal.App.2d 851 [211 P.2d 608], the testator had mentioned the will as in existence two days prior to death.
In the Estate of Reid, 79 Cal.App.2d 34 [179 P.2d 353], there was evidence that the will had been destroyed by the testatrix’ former husband after the date of death, and the trial court so found.
In the Estate of Dean, 62 Cal.App.2d 418 [144 P.2d 849], there was evidence that a person adversely affected by the alleged lost will had come into possession of it after the testator’s death and destroyed it. There was also evidence that the testatrix had, within 10 days of her death, twice stated that she had a will and that the same was in her safe deposit box to which box the person whom the court found had destroyed the will had access.
It is apparent that in each of the cited cases there was evidence that the will was in existence shortly before death and that, with the exception of the Moramarco case, someone other than the testator had the opportunity to and the motive to destroy the will. In the case at bar, none of these facts exists and on the contrary, we have the motivating facts that the will in question was unfair to the natural objects of the testator’s bounty, and for two months after any mention of his will he was faced with this fact and the fact of impending death.
Assuming, however, that the facts here permit an inference that the wills were in existence at the time of death, the findings seem to me to be so in conflict as to destroy any basis for this inference as drawn by the trial court. The trial court’s findings upon this issue are as follows:
. that it is not true that decedent revoked said last will or codicil or first codicil at any time prior to his death, . . . ; that it is true that said will and first codicil came into the possession and custody of decedent at the respective [566]dates thereof and remained in his possession and custody continuously thereafter until some time prior to his death; that it is true that no person other than decedent saw said mil and first codicil at any time after March 28, 1950; . . . that upon decedent’s death neither said will or codicil were found . . . The court finds that it is true that said will and first codicil were in existence at the time of decedent’s death and have either not been found or have been lost or destroyed by some person other than decedent.” (Emphasis added.)
The findings that we have italicized are that the will and codicil were in the exclusive possession of the testator, that they never were seen by any other person and therefore were not in their possession, and that they went out of the possession of the testator prior to his death. These findings are only consistent with the inference or presumption that the wills had been destroyed by the testator, for if they had been misplaced by him they would still remain in his possession and as they were never seen by any other person they could not have been fraudulently destroyed by any such person. In face of these findings there is no basis for the finding of the ultimate fact of the existence of the wills at the time of death, and there is not one iota of evidence in the record to support the finding that the wills were lost or destroyed by some person other than the decedent. In fact the evidence is to the contrary and the finding that they were never seen by any other person is to the contrary.
I would reverse the judgment.
A petition for a rehearing was denied December 30, 1955. Nourse (Paul), J. pro tern., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied February 1, 1956. Traynor, J., and McComb, J., were of the opinion that the petition should be granted.
Assigned by Chairman of Judicial Council.