Coleman v. Harrington, Admx. , 7 Conn. Supp. 363 ( 1939 )

This appeal from probate attacks a decree of the Probate Court for the District of Hartford denying probate to plaintiff's Exhibit A as the last will of Robert A. Hunter.

The plaintiff contends that this paper, whereas not the will itself, sets forth the contents of such a will and, therefore, meets that portion of the rule allowing probate to a lost will which provides that the contents of such will must be established by clear and satisfactory proof. However, before this rule can be met the plaintiff must establish the execution of a will and negative the fact of its subsequent revocation.

In neither of these particulars has the evidence been sufficient to preponderate in favor of the plaintiff's contention and far from that clear and satisfactory proof required by the language of Judge Carpenter in Matter of Johnson's Will,40 Conn. 587. At most the evidence of execution is confined to the presumption of the witness Mr. Blackall that because a note was made on Exhibit A the original thereof was in fact executed. None of the details of the execution in either its unessential or essential features have been testified to. It would be the merest speculation to conclude that such execution did in fact take place.

This renders unnecessary a discussion of the second question because if there were no will there could be no revocation thereof. However, much evidence was received on this issue and it appears to the court that the presumption arising from the failure to find a will among the effects of the deceased coupled with an attitude of friendliness toward his daughter entirely inconsistent with the disposition made in the third, fifth and sixth paragraphs of Exhibit A go far to establish the revocation of any testamentary intent expressed by Exhibit A.

For the foregoing reasons the action of the probate court appealed from is found correct. The appeal therefrom is dismissed and the clerk of this court is hereby directed to forward a copy of this decree to the Probate Court for the District of Hartford.