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NEBRASKA
VOL. XXIV
LAW
REVIEW
DECEMBER 1945
No.. 4
University of Nebraska Section
THE PROBATE OF LOST WILLS
Alvin E. Evans
THERE
are few problems more difficult of solution than those
facing the parties and court, arising out of the various facts
affecting lost wills. A will may have been lost, mislaid or destroyed through the negligence of the testator himself without a wish
on his part to revoke it. Or it may similarly have disappeared through
the negligent or fraudulent act of a third person such as the heir or
one acting for him. It may be gone beyond recall because of the
occurrence of a fire or an earthquake or theft as part of the booty in a
burglarious act. It may have been destroyed inadvisedly under the belief that there existed a substitute for it.
1.
THE PROBLEM GENERALLY
In the attempt by the proponent to establish a lost will, the evidence
should first be directed toward proving that it has been duly executed.
The second step requires proof of the contents and finally the loss must
be shown to have occurred without the intention on the part of the
testator to revoke it.1 While the proponent must bear the burden of
proof by clear and convincing evidence respecting all three items yet
proof of due execution does not greatly differ here from that required
where the will has been preserved. The proof of the contents, however, involves the use of secondary evidence though reliance may be
had upon the relationships and circumstances which often have strong
corroborative value and in some cases have been substantially sufficient of themselves to induce probate. Some illustrations of this will
be found later in this paper.
Editor's Note:-Dean Evans is a frequent contributor to law reviews and is
recognized as one of the leading authorities on the law of wills. Nebraska lawyers should take a special interest in this article on account of the inclusion of
the note with reference to the Miles case and because of Dean Evans' well
known connections with Nebraska.
* Professor of Law, University of Kentucky. A.B., Cotner University, A.M., University of
Nebraska, Ph.D. and J.D., University of Michigan.
,See Hattenstein v. Hattenstein, 191 Ind. 460, 133 N. E. 489 (1922). See 24 Wash. Univ. Y.
Rev. 105 (1939).
NEBRASKA LAW REVIEW
As to the conclusion to be reached re!pecting the loss of the will
whether it was at the instigation of the testator himself or was caused
by another person, wilfully or negligently, or occurred through accident either before or after the testator's death, there have been certain2
presumptions set up and often given the force of positive evidence.
One is that a will' last seen in the possession of the testator and now
lost is presumed to have been destroyed by himself.3
It is often said that there is no such presumption where the will was
traced last to the possession of another.4 But the burden is still on the
propounder to show the will was not revoked, even though it had been
last seen in the possession of another.5 The frequently stated proposition that the propounder must prove the three issues, due execution,
contents and no revocation, implies that the burden is not shifted, in
any case.0
In Alabama, 7 however, it has been said that proof of due execution
puts the burden upon the one resisting probate, to prove revocation.
Loss after death implies no revocation, but the other two issues would
remain and as to them the fact of the will surviving' the testator's
death would be largely immaterial. 8 Thus, the will may have been lost
by the negligence of the executor,9 or in the mail, 0 or even in the files
of the court,-" and it may not be known when the loss occurred, as in
the case of its destruction in the testator's strong box in the bank at
the time of an earthquake,'1 2 or by a burglarizing of the bank; 13 or
14
destroyed by the heir or his relatives.
In Gethin's Will, 5 the instrument was in the possession of the proponent-beneficiary after the testator's death. She had a paralytic
stroke and on her return from the hospital she could not speak. The
will disappeared during her stay in the hospital. An attesting witness
gave evidence of the contents and of the above facts. A concession in
- Re Johnson's Will, 40 Conn. 587 (1874); Scott v. Maddox, 113 Ga. 795, 39 S. E. 500 (1901);
re Staiger's Will, 243 N. Y. 468, 154 N. E. 312 (1926); Collyer v. Collyer, 110 N. Y. 481, 18
N. E. 110 (1888); Lawson v. Morrison, 2 Dallas 286 (Pa. 1792).
See, among other cases: Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914); Williams v.
Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151 (1993); re Staiger's Will, 243 N. Y. 468, 154
N. E. 312 (1926); re Hedgepeth's Will, 150 N. C. 245, 63 S. E. 1025 (1909); Gardner v. Gardner, 177 Pa. 218, 35 Atl. 558 (1896).
4 See e.g., Harrel v. Harrel, 284 Mo. 218, 223 S. W. 919 (1920); McElroy v. Phink, 97 Tex.
147,76 S. W. 753 (1903).
* Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914).
* See e.g., Madden
. Sevier, 271 Ky. 688, 109 S. W. (2d) 41 (1938); Rowland v. Holt, 253
Ky. 718, 70 S.W. (2d) 5 (1934); Ferguson v. Billups, 244 Ky. 85, 50 S. W. (2d). 35 (1932);
Wood v. Wood, 241 Ky. 506, 44 S. W. (2d) 539 (1931); Baltzell v. Ates, 181 Ky. 413, 205 S. W.
548 (1918); Bradshaw v. Butler, 125 Ky. 62, 100 S. W. 837 (1907); Chisholm v. Ben, 46 Ky.
(7 B.Mon.) 408 (1847); Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110 (1888).
7 Hodge v. Jay, 207 Ala. 198, 92 So. 171 (1921).
8
Steele v. Price, 44 Ky. (5 B.Mon.) 58 (1844).
Hodge v. Jay, 207 Ala. 198, 92 So. 171 (1921);
1900); Burls v. Burls (L.R.) 1 P. & D. 472 (1868).
10 Estate of Phibbs (1917) P. 93.
11 Re Granacher's Will, 77 N. Y. S. 748 (App.D.
12 Re Patterson's Estate, 155 Cal. 626, 102 Pac. 941
13 Charles v. Charles, 313 Mo. 256, 281 S. W. 417
1
4 Hayne v. Hayne, I Dick. 18, 21 E.R. 173 (Ch.
E. R. 883 (1702).
15 163 N. Y. S. 398 (Surr. 1916).
Cosgrove's Will,
65 N.
Y.
S. 570
(Surr.
1902).
(1909).
(1926).
1702); Haines v. Haines, 2 Vern. 441, 23
UNIVERSITY OF NEBRASKA SECTION
this critical situation was granted to the effect that the proponent
would give such evidence as the witness had related if she could speak
and the will was admitted to probate.
Circumstances Bearing Upon the Matter of Revocation.
It seems to make little difference whether the presumption that a
lost will was destroyed by the testator is one of law or of fact in the
final outcome, 6 though the question might affect the matter of submission to a jury. If the testator spoke of his will as existing and of his
satisfaction with it, this fact is commonly construed as admissible to
show no revocation by him,' 7 and the continued good relations' 8 with
the chief beneficiaries are significant. A request by the testator such
as "get my will from my desk" may be regarded as evidence superior
to his mere declarations that he had a wil or that he had not revoked
it, for the declaration is oblique rather than direct. The fact that there
has been an important change in the circumstances leading to the execution of a will lends' support to the proposition that a lost but revoking will was not itself revoked. Thus, assume that the testator had
two sons and left all his property to one because the other was misconducting himself; that the latter had reformed and that a new revoking will making an even distribution had been proved, such facts
9
would tend to show that the lost will had not been revoked. Proof of
continued affection for the beneficiary and a long continued purpose
to make such a will as the lost one is, proved to have been made by a
steadfast testator, may indicate no intent to revoke. This mental attithe benetude is presumed to continue. 20 Proof of hostility toward
ficiary is also admissible to show probable revocation. 21 So evidence
of a reconciliation which took place before the revoking will or codicil
was made, (which later lost instrument favored the propounder) is
admissible. 22 In Foster'sAppeal,23 the proof of the following items was
declared to be ample to show that the testator had not revoked the
will: (a) The testator had not been without a will for fifteen years;
(b) he regarded the will as being in existence up to the time of his
death; and (c) he had endeavored to execute a codicil to it shortly before death.24 The fact that the testator is a man of methodical habits,
10Re Johnson's Will, 40 Conn. 587 (1874).
1
7 Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27 (1919); re Johnson's Will, 40 Conn.
587 (1874); Keen v. Keen, L. R. 3 P. & D. 105 (1873). Negative evidence was allowed in
Dickey v. Malechi, 6 Mo. 130 (1839) that no dissatisfaction with the vill had been shown.
Cf. re Weber's Estate, 268 Pa. 7, 110 Atl. 785 (1920); Glockner v. Glockner, 263 Pa. 393, 106
Atl. 731 (1919).
18 Appeal of Spencer, 77 Conn. 638, 60 Atl. 289 (1905); Shepherd v. Stearns, 45 S. W. (2d)
246 (Tex. Civ. App. 1931).
19 Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 95 N. W. 151 (1903).
20 Jackson v. Hewlett, 114 Va. 573, 77 S. E. 518 (1913).
212 Hoffman v. Hoffman, 223 Ky. 705, 4 S. W. (2d) 5 (1928).
- Re Stewart's Will, 149 Pa. 111, 24 Atl. 174 (1892).
'87 Pa. 67 (1878).
-4 Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110 (1888).
NEBRASKA LAW REVIEW
is held to be some evidence that he intentionally destroyed his will
2 5
rather than that it was inadvertently lost.
The fact that a will makes an unnatural disposition aids the conclusion that it was revoked. In Pritchardv. Harvey,26 the testator had
made a will by which he had disinherited his daughter and had omitted his wife, thus benefiting certain collateral heirs. The will was
traced to his possession but was not found and the rule of presumption
of revocation was followed as a matter of course. The court, adopting
the language of an earlier case that proof of due execution, contents
and non-revocation was necessary to warrant the probate of it, said:
"It must be shown that the will was maintained in existence and not
revoked by the maker." Here also the testator had written to his
daughter wanting her to come and live with him and had intimated
that he meant to support her.
So likewise the propriety of the benefactions, aids the determination that the will was not revoked. In Stewart v. Walker,27 the testator
had told certain legatees that they were provided for in his will. He
was illegitimate by birth and had acquired wealth. He was on good
terms with his mother and her legitimate children. He knew that if
he should die without leaving a will his property would escheat to the
state. The court declared that a man of his intelligence would not destroy his will without having made a. new one. The proponent and
residuary legatee was a blood nephew and also jhe solicitor of the
defendent. The court approved the probate of the will on the sole
evidence of the beneficiary supported by the inferences to be drawn
from the facts recited. The testator would not have wished an escheat
to occur.
Likewise in Patten v. Poulton,28 the will was such that it was difficult to believe that the testatrix would intentionally destroy it. She
had innocently gone through a marriage ceremony with a married
man and had borne him three children. On discovery of the fraud she
separated from the man. Her lost will gave her property to her
children. There being no reason for her to change her mind the extreme probability that she would not leave these children unprovided
for was the principal factor to set up the will.
The same conclusion was reached when the lost will benefited an old
and otherwise unprovided for mother 29 with whom the testator had
long lived in close affection. He would not wish to revoke it. The
search made for the will in testator's house, in his bank boxes, and the
desk in his barn where some papers were kept, was sufficient to prove
26 Re Fallon's Estate, 214 Pa. 584, 63 Atl. 889 (1906); Cf. Bulldey v. Redmond, 2 Brad. 281
(N. Y. Surf. 1853); re Sheldon, 144 N. Y. S. 94 (App. D. 1913).
26 272 Ky. 58, 113 S. W. (2d) 865 (1938); Cf. Bulkley v. Redmond, 2 Brad. 281 (N. Y. Surr.
1853); re Sheldon, 144 N. Y. S. 94 (App. D. 1913).
27 6 Ont. L. R. 495 (1903).
28 1 Sw. & Tr. 55, 164 E. R. 626 (Eccl. 1858).
29 McMurtry v. Kopke, 250 S. W. 399 (Mo. 1923).
UNIVERSITY OF NEBRASKA SECTION
the loss of the will. At any rate, there is no presumption of revocation
where the will was in the testator's strong box at the bank and the
30
bank had been burglarized and the will thus lost.
Perhaps some inference can be drawn respecting the intent to revoke from a comparison of the lost will with other wills, 31 but similarities should not have great probative force. So when a codicil is found
in the testator's strong box in a mutilated condition which codicil
diminished the benefits given to the chief beneficiary of the prior will,
the fact that the latter-had access to the box, while remotely relevant,
is not sufficient to overcome the presumption that the destructive act
was done by the testator. The issue was held to be one of law and not
32
to be submitted to the jury.
In Clover v. Clover,33 the subsequent lost will was used as evidence
of the revocation of a prior will but was not offered for probate.
The Witnesses
Of course the best secondary evidence as to contents is a carbon
copy.34 In the absence of a statute providing otherwise, one witness is
sufficient to prove the execution and the contents of the will and he
may be the attorney who drafted it and he may be also a beneficiary
or the sole beneficiary. 35 Naturally, however, much depends upon the
character of such a witness and the credibility of his story. Thus there
seems to be no inherent reason why (apart from the matter of confidential relationships) the testator's attorney and draftsman should
not be that witness.
In Johnson's will,38 the sole witness was of irreproachable character.
The will, however, whose contents he attempted to prove, had not
been seen by him for a period of eighteen months and he had no occasion to keep it in mind and had made no memorandum. It was long, as
alleged, and contained many provisions, there were many beneficiaries,
and from three to four hours had been required for the preparation
of it. At first he could not recall its terms, but after several days of
concentration upon it and after interviews with the widow, he purported to give evidence of its main features. He was a neighbor and a
friend of the beneficiaries. As to the limitations and restrictions placed
20
Charles v. Charles, 313 Mo. 256, 281 S. W. 417 (1926).
1 Davis v. Sigourney, 8 Metc. 487 (Mass. 1844).
" Re Stewart's Will, 149 Pa. 111, 24 Atl. 174 (1892).
03 224 S. W. 916 (Tex. Civ. App. 1920). For- a somewhat similar procedure see discussion,
Evans, Testamentary Revocation by Subsequent Instrument (1934) 22 Ky. L. J. 469, 498, Cf.
Evans, Conditional Wills (1937) 35 MIcH. L. REv. 1049, 1062. See also Laughton v. Atkins,
1 Pick, 535, 548 (Mass. 1823). In Barkesdale v. Hopkins, 23 Ga. 332 (1887), it was held that
a later will may be evidence of revocation without being probated.
" Re Patterson's Estate, 155 Cal. 626, 102 Pac. 941 (1909); See Barnes v. Bostick, 203 Ind.
299, 179 N. E. 777 (1932); Harris v. Harris, 10 Wash. 555, 39 Pac. 148 (1895).
3 Bradway v. Thbmpson, 139 Ark. 542, 214 S. W. 27 (1919); re Johnson's Will, 40 .Conn. 587
(1874); Page v. Maxwell, 118 Ill. 576, 8 N. E. 852 (1886); Dickey v. Malechi, 6 Mo. 177 (1839);
Campbell v. Cavanaugh, 96 N. J. Eq. 724, 125 AtU. 5869 (1923); Brown v. Brown, 8 Eli. & Bl.
876, 120 E. R. 327 (K. B. 1858); Cf. Collyer v. Collyer, 4 Dem. 53 (N. Y. Surr. 1886). But see
Allnutt v. Wood, 176 Ark. 537, 3 S. W. (2d) 298 (1928).
30 40 Conn. 587 (1874). Semble in Stewart v. Walker, 6 Ont. L. R. 495 (1903). The sole witness was the residuary legatee.
3
NEBRASKA LAW REVIEW
upon the gifts, he admitted his failure to recall them and did not
remember the order of the terms nor some of the legacies until they
were suggested to him. It was held that the contents of the will were
not proved.
In another case, 37 the sole beneficiary of a will executed eighteen
years previously was the principal witness. The will allegedly disinherited the wife and son and purported to be made in consideration
of the kindnesses of the witness to the testator. Although the decedent
and the witness had lived in the same city for ten years, they had had
no contact during that period. The witness even forgot the former's
given name, and though he claimed to have had possession of the will,
he could not produce anything better than a memorandum of it. Needless to say, his testimony was not considered clear and convincing.
It is altogether possible for the evidence of an interested witness to
meet the requirement of being clear and convincing. Thus the testimony of the husband of the beneficiary has been held to be adequate. 33
The case, Allison v. Allison,39 is a rather extreme illustration where
an interested witness had intentionally destroyed the will and was
permitted to prove its contenis. Though the court recognized that a
voluntary destruction of primary evidence will usually deprive the
doer of the right to make use of secondary evidence, yet, under the
circumstances, the testimony was convincing. In an English case,40 the
residuary beneficiary was the amanuensis of the testator, a noted lawyer. She was shown to have had special training and ability to understand a complicated will. The opposition admitted her high degree of
integrity and the evidence of the contents was held to be adequate.
There seems to be little question but that the direct declarations of
the testator are admissible (save perhaps in New York)41 but only as
37 Kahn v. Hoes, 14 Misc. 63, 35 N. Y. S. 273 (Sup. Ct. 1895). In Coddington v. Jenner, 60
N. J. Eq. 447, 45 Atl. 1090 (1900), the principal witness and beneficiary was not the heir,
though the will was found to make a natural and proper disposition. He produced a
memorandum of the contents of the will, preserved by him for many years and it contained his only evidence as he had not preserved the will itself. The dissenting opinion
(will was not sustained) calls him "the impeached witness" without indicating the character of the impeachment.
In Apperson v. Dowdy, 82 Va. 776, 1 S. E. 105 (1887), a sole witness 85 years of age
testified by deposition that she had seen the will 68 years before the date of the hearing
and had heard it read. She was the daughter of testator. Her testimony was to this effect:
A negro was given to herself, all the rest went to her mother for life; at her death the
personalty was to be sold and the proceeds divided among testator's children. "The land
was to be held by D for life and if D left any child or children after his death, then to
such child or children, and if he died without any children, then the land was to go back
to the father's estate." The court thought this evidence was insufficient to prove the contents, so as to overturn an ancient and unquestioned possession and title. The evidence of
one who heard the will read was in this case regarded as equal to having read it.
In re Thorman's Estate, 162 Iowa 237, 144 N. W. 7 (1913) the sole witness was a disbarred
attorney, so will contents not proved adequately. Cf. re Brown's Will, 43 Iowa 690, 120 N.
W. 667 (1909) (attorney-witness impeached). See also Wood v. Achey, 147 Ga. 571, 94 S. E.
1021 (1918).
Quaere whether a will may be established on the memory of one man after a number of
years,
Cole v. McClure, 88 Ohio St. 1, 102 N. E. 264 (1913).
3
8 Harrell v; Harrell, 284 Mo. 218, 223 S. W. 919 (1920).
39 37 Ky. (7 Dana) 90 (1838).
40 Sugden v. St. Leonards, 1 P. D. 154 (1876).
41 Mercer v. Mackin, 77 Ky. (14 Bush) 434 (1879); Chisholm v. Ben, 46 Ky. (7 B. Mon.)
408 (1847); re Kennedy's Will, 167 N. Y. 163, 60 N. E. 442 (1901); Harris v. Harris, 26 N. Y.
UNIVERSITY OF NEBRASKA SECTION
corroborative and not as primary or sole evidence that the will once
shown to have been executed and its contents proVed, was not revoked.
One court holds that when a probate court order had admitted a lost
will to probate, though no evidence had been offered before the court
as to the existence of the will after the testator's death, (the statute
requiring its subsequent existence or else proof of destruction before
that without testator's knowledge) still the admission to probate by
the proper court was sufficient evidence on appeal to sustain the will.
The instrument had been lost after the maker had deposited it in the
42
office of the court and had never called for it thereafter.
2. PARTIAL REESTABLISHMVENT OF LOST WILL
It is frequently declared that a lost will may be set up to any extent
that its contents can be proved, assuming, of course, that there was no
intent to revoke it in its entirety.43 A revocatory clause alone may be
proved which would have the effect of leaving the testator intestate,44
though doubt has been thrown on the matter in Pennsylvania. 45
While some authorities tend to require proof of the entire will,4 6 the
rule has been satisfied by proof of a substantial or an independent part.
Thus, in California three devises and one legacy were proved and the
other legacies failed.47 In Davis v. Sigouney 4 86 it was said that the will
must be set up in its substantial entirety but in a latter case 49 the court
held that any substantial provision complete in itself and independent
was provable if not affected by other provisions not proved. Just how
far would the court go in permitting unimportant or minor provisions
which could be proved though the main body of the will could not be
proved? Maryland, while holding that a will need not be proved in its
entirety, will apparently permit the probate of one where minor parts
are not proved but not otherwise. 50
If proof of the residuary clause only is forthcoming, should it be
allowed? If it throws a large estate into the hands of non-heirs, the
433 (1863). For some limitations on the use of testator's declarations see Barkwell v. Barkwell (1928) p. 91, and note in 14 Ann. Cas. 284.
42 Egbert v. Egbert, 10 Ohio App. 432 (1918).
d3 Burge v. Hamilton, 72 Ga. 568 (1884); Steele v. Price, 44 Ky. (5 B. M.) 58 (1844); Dickey
V. Malechi, 6 Mo. 130 (1839); 2 PACE ON VLLS (5 vols. 1941) secs. 712-721; ATFMsoN ON WLLs,
pp. 452-458 (1937).
At See extended note in 94 A. L. R. 1024 citing authority to this effect from Cal., Mass.,
Mich., Milnn., Miss., Nebr., N. Y., Oreg., Tex., and England. This rule has been adopted by
implication in Kan., Ky., Me., Md., N. H., Ohio, S. C., and Wis. '
as Shetter's Estate, 303 Pa. 193, 154 Atl. 288 (1931); Cf. Youndt v. Youndt, 3 Grant's cases
140 (Pa. Sup Ct. 1861).
40 Thus, in Sheridan v. Houghton, 6 Abb. N. C. 234 (N. Y. Sup. Ct. 1879), Arid. 84 N. Y. 643
(1881) though some legacies were proved by two witnesses the will was not held good
where the others were not so proved. In McNally v. Brown, 5 Redf. 372 (N. Y. Sur. 1882)
it was declared that the witnesses must testify at least to the substance of the whole will.
d Re Patterson's Estate, 155 Cal. 26, 102 Pac. 941 (1909).
48 8 Mete. 487 (Mass. 1944).
as Tarbell v. Forbes, 177 Mass. 249, 58 N. E. 875 (1900).
See Estate of Laege, 180 Wis. 32,
192 N. W. 373 (1923).
ra Preston v. Preston, 149 Md. 498, 132 Atl. 55 (1926). Thus Maryland disapproved of Sugden v. St. Leonards 1 P. D. 154 (1876) (proof of residue only) and Skeggs v. Horton, 82
Ala. 352, 2 So. 110 (1887) (proof of a single small legacy only.)
NEBRASKA LAW REVIEW
result seems undesirable. If there were no heirs, the result would be
commendable, especially if the residuary beneficiary were a charity.
It is argueable that there is no adequate reason to deprive such a
legatee of his gift. But since there is no way to know what the testator
would desire in the situation, it seems better to let the property pass
under the statute of descent and distribution.
In 1876 the English Probate Court permitted the probate of the
residuary clause only,5 but the House of Lords, ten years later, said:
"If that (Sugden case) is intended to lay down a universal proposition
that wherever you have evidence as to the gift of the residue, whatever you may know of the rest of the will and the legacies given by it
and however clear it may be that there were large legacies given by
the will, if you are not able to prove the amount of those legacies, you
are still bound to grant probate of the residue and give the whole to
the residuary legatee, I do not say I dissent, from the view, but I certainly hesitate before giving my assent to it."
The present writer believes that wherever a residuary clause exists,
it is usually fair to assume from this fact that there were other beneficiaries. We therefore know that the testator did not intend that all
his property should pass under it. The better rule, then, would be to
hold that the testator died intestate under this circumstance, unless
enough is known to indicate that this consequence would not be fantastic. Of course all those cases which permit the probate of any
.provable parts seem to apply to the probate of the residuary clause
standing alone. Query, what course would California, Maryland, Massachusetts and some other states follow which have declared their willingness to probate only the substantial provisions or independent
parts. In Alabama where an individual legacy of $500 was proved but
the legatee could not be identified through failure of the memory of
the witness, the question was not determined whether or not that
52
sum fell into the residue.
3. PARTIAL REVOCATION
The New York statute is interpreted as denying effect to a partial
revocation5 3 where a part has been expunged. The missing part may
be provable as a whole or not provable at all or partially provable. In
the first alternative, no difficulty arises and the will is to be probated
on proof of the contents of the part removed. Mutilation by the testator creates a situation similar to that where the will is lost.
51 Sugden
v. St. Leonards, 1 P. D. 154 (1876).
52 Skeggs v. Horton, 82 Ala. 352, 2 So. 110 (1887). We may note that on trial de novo on
appeal from the probate court the will may be proved to a greater extent in the circuit
court than was shown below. Steele v. Price, 44 Ky. (5 B. M.) 58 (1844). Also in this
court pleading may be amended and enlarged and this is the proper court in which to
apply for a new trial on newly discovered evidence. *Williams v. Mliles, 73 Neb. 193, 102
N. W. 482 (1905).
63 See 23 Ky. L. J. 561 571-3 (1935). It should be recalled that under the statutes of many
states, revocation of a later will does not revive the former one. See as to the case where
the later will is lost, re Barnes' Will, 75 N. Y. S. 373 (App. D. 1902).
UNIVERSITY OF NEBRASKA SECTION
But one is in a quandary as to the cases where this portion is either
not provable at all or only in.part. If no proof is forthcoming, the will
is revoked, though it is by no means sure that there was a clear intent
so to do. Such a ruling might be applied even though the unknown
portion might be shown to have been inconsequential.
In re Kent's Will 54 the court directed probate to the extent that the
removed part could be proved, though one entire paragraph and a part
of the residuary clause had been removed. This result, however, conflicts with other New York authority and arguably annuls the
statute., 5 A further argument sometimes made against that result is
that it increases the residue by a non-attested actY6 The Appellate
Division regarded the rule against partial revocation as impractical. 57
In re Dryer's Estate58 probate of the preserved part was denied as the
case then stood. 9 The question, what is the New York rule, with
respect to the proof of such parts of a lost will as are susceptible of
proof can scarcely-be said to be clearly answered.
Incapacity to Revoke
The loss of a will made by a testator who no longer has testamentary
capacity raises the question whether the presumption of revocation
applies the same as in other cases. It may be said that capacity to revoke must equal the testamentary capacity required for original execution and that an insane testator cannot revoke his will. Several problems, however, arise in this respect. If it can be shown that the will
was destroyed during temporary insanity, no doubt the will is not revoked.6 0 So if the will is shown to have been in existence a short time
before insanity and thereafter it disappeared, it may be probated. 61
The problem is more difficult where there is no evidence fixing the
date of its loss or destruction. Courts have hesitated to declare any
presumption or general rule for the case. In Goods of Crandon,62 the
executrix became insane some three years after the will was executed
but not very long before her death. There was no proof as to the date
of the loss. Probate was granted but there being no opposition, probate was rather a matter of course. In Shacklett v. Roller 63 there were
much the same facts, there being no proof either when it was made or
when it was destroyed and there was nothing in the evidence sufficient
to prevent the application of the rule that a lost will last seen in the
testator's possession is presumed to have been revoked.
rt 155 N. Y. S. 894 (1915).
5r Re Curtis, 119 N. Y. S. 1004 (App. D. 1909); note in"1 Corn. L. Quart. 215 (1916).
l6 In re Dryer's Estate, 257 N. Y. S. 257 (Surr. 1932).
Re Parker's Will, 165 N. Y. S. 702, 709 (App. D. 1917); in re Dryer's Estate, 257 N. Y. S.
257 (Surr. 1932).
s 257 N. Y. S. 257 (Surr. 1932).
" But in Kent's Will, 155 N. Y. S. 894 (App. D. 1915), probate was deemed advisable
even though the residue was increased as a result of the mutilation.
00
0 Forbing v. Weber, 99 Ind. 588 (1884).
1 Re Johnson's Will, 40 Conn. 587 (1874).
6 84 L. T. N. S. 330 (P. D. 1901).
03 97 Va. 639, 34 S. E. 492 (1899), but see Preston v. Preston, 149 Md. 498, 132 Atl. 55 (1926).
04 262 Ill. 126, 104 N. E. 233 (1914).
NEBRASKA LAW REVIEW
4. THE
APPLICATION OF DEPENDENT RELATIVE REVOCATION
The doctrine of dependent relative revocation is often invoked when
it seemingly has no application. Thus, in Griffith v. Higinsbotom64 the
testator's will could not be found at his death.. The proof of due execution of it seems to have been reasonably conclusive as also the fact that
it had been in his own possession at his death. The proponent sought
to establish the contents by putting into the evidence a letter written
by the testator some ten years later. The letter purported to contain
a copy of the will with some important additions intended as alterations of it. In the letter the testator declared that his motive for inserting therein a copy was that if the will should be destroyed by fire
there would still be evidence of its contents in existence. There were
also other letters of the testator referring to. the will and other memoranda of bequests which he had forgotten. About ten days before his
death, he made a written declaration that the will was in his possession. None, however, was found.* The court held that these written
memoranda were insufficient to prove non-revocation though they
were apparently enough to establish the contents. Under the statute,
revival, as such, of the prior will would not occur. The proponent
urged the view that if the testator was held to have destroyed his will,
the act was done for the purpose of clearing the way for a new will
and not to cause an intestacy. It seems clear that this is not a case of
conditional revocation which is often considered as involved in dependent relative revocation. It is fair, however, to raise the question
whether these memoranda should not be regarded as adequate proof
that the will was not revoked. They seem to be much stronger than
any case of mere oral declarations.
So in the case of re Cunningham,65 the later revoking will was lost.
It was argued by the proponent of the prior will that the testator did
not wish to die intestate and so the prior will was revoked only on the
condition that the second will could be set up. It, of course, does not
follow that because a testator wishes to revoke his later will but does
not wish to die intestate, that he therefore means to return to his prior
scheme of dispositions. At any rate, the court held that vague speculations as to what the testator would wish, could not overcome the unequivocal act of revocation even granting that there was no intent to
revoke the lost will which failed because its contents could not be
proved.
A court may take any one of five positions. (a) The last revoking
will being lost leaves the decedent intestate, 6.a of (b) the prior will is
unrevoked inasmuch as there is no existing revocation at the time of
his death, or (c) that the prior will was conditionally revoked and
under the circumstances the condition was not fulfilled. Thus, it is
65 38 Minn. 169, 36 N. W. 269 (1888). See note in 8 Minn. L. Rev. 51 (1924).
0
5a Bassett's Estate, 196 Cal. 576, 238 P. 666 (1925).
UNIVERSITY OF NEBRASKA SECTION
argued that the revocation of the prior will was made upon the condition that a later will would effectively take the place of the earlier
one, or (d) the earlier will was in truth revoked but the last revoking
will whose contents cannot now be proved, being similar to the provisions of the revoked will, it is permissable to set the revocation aside
in equity (or even under the equitable powers of a probate court) and
thus restore the revoked will as a final testamentary disposition. Sometimes (c) and (d) are treated as if they were essentially identical in
theory. Finally (e) some courts may hold that the prior will was re5b
vided.
Under such circumstances, Alabama holds that the revocation of the
prior will is not conditional, and it cannot be set up,66 that there is no
occasion to invoke dependent relative revocation and the actual revocation stands in spite of the inability of .the proponent to prove the
contents of the lost will.
Pennsylvania considers that the prior will was never revoked at all.
Hence, there is no question about revival, nor is there any question
about conditional revocation, nor of dependent relatives revocation.
67
Thus, in re Harrison,
one of the claimants under the later lost will
offered proof of the contents of it. The court was of the opinion that
such proof of a lost will conflicts, not with some specific statute on lost
wills requiring two witnesses, nor with a provision which controlled
the method of revocation but rather with the statute which requires
due execution to be shown by two witnesses. A Pennsylvania case also
seems to hold that a mere revocation is not provable although one
cannot be sure to what extent Pennsylvania will go on this point. It
is clear that if such is the doctrine here, it conflicts with the almost
unanimous holding in other states. Pennsylvania, however, held that
where the later revoking will was destroyed but the testator had endeavored by an unattested codicil to revive a prior will the prior will
was still good though the codicil could have no effect. 68
On the other hand, the doctrine of dependent relatives revocation
may properly be applicable. Thus, in re Thompson 69 a lady by will left
her property to her sister, giving nominal legacies to her husband and
to her brother. By a subsequent will containing a revocatory clause
she made essentially the same disposition. Here the statutory requirement that two witnesses be produced to prove the execution worked a
great hardship for though a carbon copy shown to be a duplicate was
available to establish its contents, still the proof did not comply with
65b Crocker v. McCardle, 332 Ill.
27, 163 N. E. 384 (1928).
GGLuther v. Luther, 211 Ala. 352, 100 So. 479 (1924); see also Vining v. Hall, 40 Mss. 83
(1866); Hairston v. Hairston, 30 Miss. 276 (1855).
67 316 Pa. 15, 173 Atl. 407 (1934). This position is explained in Koehler's Estate, 316 Pa.
321, 175 Atl. 424 (1934) that a revocation cannot be proved orally.
6sShetter's Estate, 303 Pa. 193, 151 AtL 288 (1931).
CD185 Cal. 763, 198 Pac. 795 (1921). In Gill v. Gill (1909) Pr. 157 where the wife in a fit of
temper tore up the husband's will and he later attempted to ratify her act as a revocation,
it was held that a subsequent ratification did pot constitute a revocation.
NEBRASKA LAW REVIEW
the statutory requirement. To meet this hardship, the court held that
the earlier will was only conditionally revoked. Conditional revocation, however, is confused with dependent relative revocation. That
which in fact seems to have been done was that the revocation of the
earlier will was set aside and the prior will was set up. This is equitable because the. will which failed for want of statutory proof was
substantially identical with the earlier one.
Destruction Known to Testator
Where the matter is not controlled by statute, the question may
arise, is a will lost to the knowledge of the testator and which he fails
to re-execute to be regarded as revoked? The loss of a will by some act
of another or by an event of nature is not a method of revocation commonly indicated in statutes. on testamentary revocation. If the court
concludes that such a will whose contents are susceptible of proof, can
not be probated it would be better to say not that the instrument is revoked but it fails for lack of proof. Of course, if the will were destroyed as in an earthquake, without the testator's knowledge it should
be provable if the statute so permits. 70 It may be recalled that the probate of a will was not proof of its validity in the common law courts
in, for example, an action for trespass or in ejectment. Hence, it was
held a certified copy of a lost will having been probated was not evidence from which a jury could presume the continued existence of
the will.71 Sometimes it is declared that proof of testator's knowledge
7 2
that his will has been lost is prima faciae proof of revocation by him.
5. SPoLIATIoN
The problem of concealment, destruction and mutilation by interested persons appears often and is one of the most difficult situations in which to reach a just result. Various means of thwarting the
despoiler have been adopted at one time and another. Thus, where a
plaintiff asserted that he was the devisee of certain land and established the execution of the will and its destruction by the defendantheir, the court decreed a conveyance without strict proof of the exact
contents. 73 So when a deed or will was suppressed by the heir, it was
decreed that the plaintiff should hold and enjoy the premises and the
suppresser must convey. "If a man destroys a thing that is designed to
be evidence against himself, a small matter will supply it. And therefore, where the defendant had torn his own note signed by him, a copy
0
o Patterson's Estate, 155 Cal. 626, 102 Pac. 941 (1909). Under these circumstances held revoked in Campbell v. Cavanaugh, 125 Atl. 569 (N. J. 1923) Affd. 125 Atl. 926 (1924).
71 Hale v. Monroe, 28 Md. 98 (1868).
72 Steele v. Price, 44 Ky. (5 B. M.) 58 (1844). Cf. note in 34 Mich. L. Rev. 80 (1936) on
Probate of Lost Wills, and note in 34 A. L. R. 1307.
73 Re Johnson's Will, 40 Conn. 587 (1874); Scott v. Maddox, 113 Ga. 795, 39 S. E. 500 (1901);
re Staiger's Will, 243 N. Y. 468, 154 N. E. 312 (1926); Collyer v. Collyer, 110 N. Y. 481, 18
N. E. 110 (1888); Lawson v. Morrison, 2 Dallas 286 (Pa., 1792). Cf. re Ziegenhagen's Will,
148 Wis. 382, 134 N. W. 905 (1912).
UNIVERSITY OF NEBRASKA SECTION
295
sworn was admitted to be good evidence to provide it." 7 4 As against
the spoliator, it has been held that due execution is presumed. 3
The sole beneficiary of a lost will is entitled to prove its contents by
his own unsupported evidence where the defendant has suppressed it
and due execution will be presumed. When the heir is not at fault,
however, the sole beneficiary may not be allowed to establish the con76
tents by his unsupported evidence.
It must be observed, however, that mere suspicion cannot ripen into
proof where only interest and opportunity to destroy are shown and
more than this is required to take the case to a jury. 77 When a beneficiary destroyed the will because he believed it inoperative and bad
faith was not present, he was allowed to prove its contents by second78
ary evidence.
The word "lost," says one court,79 does not mean simply a do6ument
which cannot presently be found, but must be given some of the signification of "spoliated" or "destroyed." The court does not indicate
any reason for such an interpretation.
74 Anon., 1 L. Ray 731, 91 E. R. 1388 (K. B. 1697-8). See Allen v. Scruggs, 190 Ala. 654, 67
So. 301 (1914); Williams v. Miles, 68 Neb. 463, 94 N. W. 705, 96 N. W. 151 (1903); re Staiger's
Will, 243 N. Y. 468, 154 N. E. 312 (1926); Colyer v. Collyer, 110 N. Y. 481, 18 N. E. 110 (1888);
re Hedgepeth's Will, 150 N. C. 245, 63 S. E. 1025 (1909); Gardner v. Gardner, 177 Pa. 218, 35
AtL 558 (1896).
In Woodruff v. Burton, 1 P. Wms. 734, 24 E. R. 591 (Ch. 1709), the heir who had destroyed
the will, whose contents had not been established, was ordered to convey to the alleged
devisee. There is no clear showing of any proof of the contents, but it was assumed that
the heir would not have destroyed it unless its contents were contra to his interests, and
in such a case the destroyer must bear the risk. So in Williams v. Williams, 33 Beav. 306,
55 E. R. 385 (Rolls Ct., 1863) the younger son claimed under a will destroyed by the heir;
the latter was refused a jury trial of the issue as to contents and the court declared:
"Everything is to be taken most strongly against the heir." So in another case the will
was established in accord with the devisee's petition "for if it were otherwise, it would be
in the power of the defendant to make it disappear." The decree setting up the will was
made upon a simple affidavit.
For the way the court regards evasiveness of a chief party in interest when he is being
cross-examined, see Heath v. Waters, 40 Mich. 457 (1879).
See also Finch v. Finch, 1 P. & D. 371 (1867), where the heir had access to the will, made
a search and did not find it. The court refused to presume that the will last seen in the
testator's possession had been revoked.
7
r Lambie's Estate, 97 Mich. 49, 56 N. W. 223 (1893). So' a spoliator cannot object to the
proof of the will by a witness who would otherwise be incompetent. Middleton v. Middleton, 188 Ark. 1022, 68 S. W. (2d) 1003 (1934).
7
0 Harrell v. Harrell, 284 Mo. 218, 223 S. W. 919 (1920); McElroy v. Phink, 97 Tex. 147, 76
S. W. 753 (1903). See Allnutt v. Wood, 176 Ark. 537, 3 S. W. (2d) 298 (1928).
In Lambie's Estate, 97 Mich. 49, 56 N. W. 223 (1893) and Campbell's Will, 100 Vt. 395, 138
Atl. 725 (1927) it was held omnia presumentur contra spoliatorem even when the intent
was not fraudulent, and due execution will be presumed. See 7 WicMoaR, EvIDENcE (3d ed.
1940) Sec. 2106 on proof of execution and 6 Wicmavoa, EVIDECE
(3d ed. 1940) Secs. 734 and
1782, where declarations are classified. Spoliation is considered, 9 WIcvioR, EVIDEc (3d ed.
1940) Secs. 2524, 278, 291.
77
Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914). Courts say they will not presume that
an interested person who had the opportunity, destroyed the will, for that would be assuming that a crime had been committed, Griffith v. Higinbotom, 262 Ill. 126, 104 N. E. 233
(1914); McElroy v. Phink, 97 Tex. 147, 76 S. W. 753 (1903).
78 See e.g., Madden v. Sevier, 271 Ky. 688, 109 S. W. (2d) 41 (1938); Rowland v. Holt,
253 Ky. 718, 70 S. W. (2d) 5 (1934); Ferguson v. Billups, 244 Ky. 85, 50 S. W. (2d) 35 (1932);
Wood v. Wood, 241 Ky. 506, 44 S. W. (2d) 539 (1931); Baltzell v. Ates, 181 Ky. 413, 205 S. W.
548 (1918); Bradshaw v. Butler, 125 Ky. 62, 100 S. W. 837 (1907); Chisholm v. Ben, 46 Ky.
(7 B. Mon.) 408 (1847); Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110 (1888).
7D Gibson v. Gibson, 25 Ohio C. C. 698 (1903).
NEBRASKA LAW REVIEW
6. STATUTORY PROVISIONS-CURATIVE ACTS
This study does not purport to make a thorough examination of the
statutes found in some states regulating the probate of lost wills.80 A
common provision, however, is that the will must- be shown to have
been in existence at the time of the testator's death or have been destroyed fraudulently and without his knowledge prior to his death. Another is that it can be set up only on the testimony of two witnesses
who, in case the entire will cannot be proved, must give evidence of
the same identical provisions. 81 These statutes do indeed prevent the
probate of some wills which the testator may have intended to revoke
but they prevent the proof of many wills which, it may well be assumed, the testator never intended to revoke. Apart from statute, a
single witness is enough and he may be an interested one. Even oral
declarations of the contents made by the testator, have been sufficient
in England. But the requirement that the will must have existed after
testator's death or have been destroyed fraudulently before that event
often causes hardship.
Thus, in Patterson'sEstate, 2 a will was destroyed in the great earthquake in San Francisco prior to the testator's death. The California
statute was of the pattern above indicated. The will was not destroyed
fraudulently and so could not be proved. Inasmuch as there was such
a vast number of wills and other instruments destroyed by that catastrophe, a curative act was needed. The prior statute controlling the
probate of lost wills was amended by a curative act intended to apply
to cases which arose before its passage. It modified the requirement
respecting fraudulent destruction by permitting proof of a will which
had been destroyed by public calamity in testator's lifetime without
his knowledge. The statute was applied to a case where the decedent
had died before its enactment.
The court held that the statute went no further than to alter the
rules of evidence and the degree of proof. This procedure is after a
fashion like the case of proof of oral trusts. The law permits subsequent writings to be executed after which the existing but hitherto
unenforceable trust becomes enforceable. Here the will existed and
there was written proof which could not be made available without
further legislation for the purpose of probating it. The court commented on Alter's Appeal83 and upon Giddings v. Turgeon.84 In the
former case a husband and wife having drafted mutual wills each
80Bordell, Statute Law of Wills, 14 IOWA L. Ray., 1 at 172, 283, 428 does not seem to discuss this matter.
81 Harris v. Harris, 10 Wash. 555, 39 Pac. 148 (1895). In Eder's Estate, 94 Colo. 173, 29 P.
(2d) 631 (1934) and in re Havel's Estate, 158 Minn. 253, 194 X. W. 933 (1023) it was held
that the continued physical existence of the paper after death was not what was required
by the statute but rather the continuing intent to make the dispositions which were in it.
82 155 Cal. 626, 102 Pac. 941 (1909).
ss67 Pa. 341 (1871).
s' 58 Vt. 106, 4 Atl. 711 (1886).
UNIVERSITY OF NEBRASKA SECTION
signed the one intended for the other. A legislative act thereafter
authorized the court to hear the case and correct the mistake if one
had been made. This statute was held invalid because on their death
without leaving valid wills, their estates had already vested in their
heirs. No wills existed for any purpose. So in the latter case the
husband had subscribed the wife's will as a witness. Under the common law the identity of husband and wife causes the will to fail to be
attested by the requisite two witnesses.
In another case, 85 the will destroyed by the same earthquake during
testator's lifetime but apparently with his knowledge, could be proved
by only one witness, the second proposed witness being one who had
heard the will read but had not read it. It could not be probated. In
still another case, a testatrix desired to execute a codicil only. The
stenographer, however, had recopied the last three sheets of the will,
added the desired provision, and threw the originals away. The testator never came back to execute the altered instrument. Inasmuch as a
will must be in existence in New York at the death of the testator or
have been fraudulently destroyed in his lifetime, the court held that
these three sheets were destroyed fraudulently though acknowledging
86
that there was no fraud.
Such a case raises the question whether legislation controlling the
probate of lost wills is desirable. Is not the common law better, requiring as it does, clear and persuasive evidence of'the execution, contents
and loss without the consent of the testat6r, but without designating
its precise character? The several cases of hardship arising under
statutes point to the conclusion that those states which have no statute,
reach a more equitable result than those which provide minute directions for the probate of lost wills. Thus, a will is not fraudulently destroyed when the destruction is by an event of nature, nor is it so destroyed when a testator has been obliged to leave his abode instantly,
while in foreign territory, and abandon all his effects. 87 Occasionally,
a statute requires the lost will to be proved in its entirety. 88
The Allegations of the Petition
The petition should allege the due execution of the will, the contents
and the fact of loss, spoliation or destruction without the knowledge
and consent of the testator and that it cannot be found. In James v.
Parker,89 it was held that the allegation in the petition to establish the
lost will that the will remained in the custody of the decedent's attorney until after the happening of a certain event, "After which it
85 Guinasso's Estate, 110 Pac. 335 (Cal. App. 1910); cf. Harris v. Harris, 10 Wash. 555, 39
Pac. 148 (1895).
80 Re Dorrity's Will, 194 N. Y. S. 573 (Surr. 1922).
s7Cf. Goods of Gardner, 1 Sw.and Tr. 109, 164 E. R. 651. (Eccl. 1858).
68Todd v. Rennick, 13 Colo. 546, 22 Pac. 898 (1889); Vining v. Hall, 40 Miss. 83 (1866).
so131 Md. 466, 102 Atl. 760 (1917); However, McBeth v. McBeth, 11 Ala. 596 (1847) seems
indistinguishable and is contra as also Dawson v. Smith, 3 Houst. 335 (Del. 1886).
NEBRASKA LAW REVIEW
became lost and cannot be found after diligent search" was insufficient
for pleading that a will was lost. So it has been held that an allegation
that on the death of the decedent, the defendant obtained access to his
papers and concealed, suppressed or destroyed them was demurrable.
It does not allege the non-existence of the will clearly nor that the
paper could not be brought into court for proof. The following, however, has been held to be sufficient. After the time, the place, the
.identity of the attesters and the acts appropriate to due execution and
that the will had never been revoked, were alleged, it was further
stated that: "During the lifetime of said testator his lost will so
executed as aforesaid was destroyed without his consent and without
the consent of these plaintiffs; said destruction of such will never
having come to the knowledge of said testator." It was not necessary
to state, when, where, how, and by whom the will was destroyed °
In another case, 91 it was held to be improper to submit a special
issue to the jury in this form: "Did the testator destroy his will with
the intention of revoking it?" This form assumes the aspect of a double
question which could not be answered unequivocally and intelligently
by the jury. It should be stated in two separate questions viz.: Did
he destroy it? If so, did he intend to revoke it?
Jurisdictionover Probate of Lost Wills
No general statement can be made as to what court has jurisdiction
to set up a lost will. In a case from New York, it was concluded that
there was concurrent jurisdiction, in the surrogate and in the supreme
court under the statute.92 The matter generally depends upon the
wording of the statute.
In several states wills are probated in the superior court in the division to which they are assigned. In others, the lost will is set up in
equity though the probate court has jurisdiction over the general matters of probate.93 In still others, a lost will is probated in the probate
court only.94 It seems that traditionally a lost will could be set up in
equity though the probate court had original jurisdiction over the
probate of wills not lost. 95
CoNCLUSION
This study leads the writer to certain tentative conclusions. One is
that the special statutory requirements for proof of lost wills have not
90 Gfroerer v. Gfroerer, 173 Ind. 424, 90 N. E. 757 (1910). In a trial de novo on appeal
from the probate court the pleading may be amended. Bradshaw v. Butler, 125 Ky. 62,
100 S. W. 837 (1907).
92Gumtow v. Jauke, 177 Mich. 574, 143 N. W. 616 (1913).
92
Re Dorrity's Will, 194 N. Y. S. 573 (Surr. 1922). See also Dower v. Seeds, 28 W. Va. 113
(1886).
9' Kaster v. Kaster, 52 Ind. 531 (1876).
Chambers v. Porter, 183 N. W. 431 (Iowa 1921); Aylevard Coal Co. v. Luckyx, 261 Mich.
394, 246 N. W. 156 (1933);' Hedgepeth's Will, 150 N. C. 245, 63 S. E. 1025 (1909); Valentine's
Will, 93 Wis. 45, 67 N. W. 12 (1896).
96 Tucker v. Phipps, 3 Atk. 359, 26 E. R. 1008 (Ch. 1746).
UNIVERSITY OF NEBRASKA SECTION
worked well. Elasticity is required and it is difficult to frame statutes
which can bend so as to meet emergencies. A good illustration is the
case where the lost will had been duly executed and clearly destroyed
without the act of the testator and without his wish to destroy it. A
carbon copy was available but the statutory requirement of two witnesses could not be complied with. Equally undesirable is the require-
ment that it should be in existence at testator's death or have been
fraudulently destroyed before that, as the earthquake and fire cases
show.
Another serious problem is whether a lost will should go to probate
to the extent that it is provable, as an inviolable rule. There ought not
to be an objection to the proof of a revocation even when the rest cannot be set up. In that case the property goes by descent. It is much
more serious to allow a residuary clause only to go to proof, and it
probably should not be done save where the general contents of the
will are established and no incongruity thereby occurs. Otherwise, a
result may be reached quite at variance with the testator's intent. It
is objectionable also to allow a residuary clause to have full effect
when it is possible to prove a legacy but not the identity of the legatee.
The logical result would be a partial intestacy.
The problem of spoliation is no easy one. On the whole the courts
have met it wisely where they were uncontrolled by a statute. Proof
of an opportunity to tamper with a will is not to be taken as evidence
of tampering. Where, however, the tampering is proved, the courts
have found ways to embarrass the spoliator, yet often there is no way
to overcome the results of wrongdoing.
There is probably little place here for the doctrine of dependent
relative revocation. The rare case may, however, occur where a prior
will is still preserved and the lost will is shown to be substantially
similar to it, and was not intended to be revoked, but owing to the lost
will statute, it cannot be proved. In such case that doctrine should be
applied.
Finally, it is interesting to observe that no case has been found
where the defendant was sued for damages for failing to use due care
in the preservation of the will entrusted to him.