Hull v. Cartin , 61 Idaho 578 ( 1940 )

The majority opinion is founded upon the theory that the requirements of section 15-231, I. C. A., were not satisfied by competent proof. Section 15-231, supra, provides in part:

"No will shall be proved as a lost or destroyed will unless . . . . its provisions are clearly and distinctly proved by at least two credible witnesses."

To my mind the view taken by the majority of the court invokes technicalities that defeat justice and deprive the testatrix of the sacred right to dispose of her property according to her desire. The majority opinion holds in effect that the provisions of the lost or destroyed will were not clearly and distinctly proved by at least two credible witnesses. Mr. Hull, attorney for Mrs. Gearon, at her request and without the presence of any other person typed the will according to her instructions and directions. Mr. Hull typed the original and two duplicate originals, or triplicate originals. One of these triplicate originals was signed by Mrs. Gearon and witnessed by two subscribing witnesses, Mr. Ramstedt and Miss Ryan, at the request of Mrs. Gearon who declared to them and to Mr. Hull that it was her last will and testament. It was established beyond controversy that the testatrix had the mental capacity to make a will and that she duly executed the lost will. Mr. Hull testified that he typed the will as above stated and that he knew the provisions thereof. While he did not sign the will as a subscribing witness he did witness the entire transaction and knew the contents of the will and it cannot, it seems to me, be logically contended that he was not a credible witness to the provisions of the will within the meaning of the statute. The triplicate original of the will in the possession of Mr. Hull, and there is no contention that it was not a triplicate original containing the identical provisions contained in the will signed by Mrs. Gearon and by the subscribing witnesses, would constitute a second credible witness within the meaning of the statute when not hypertechnically construed. However, in addition and to clearly and distinctly establish the provisions of the will there is the testimony of George A. Mortimer to whom in 1936 Mrs. Gearon disclosed in detail the contents and provisions of the will, excepting a few small bequests of personal property, and informed him that she had appointed him an executor and trustee and asked him if he would serve. Furthermore there is the testimony of Judge Worstell who was likewise informed by Mrs. Gearon approximately two and one half months before her death that she had appointed him one of her executors and trustees of the will and he testified to one provision of the will from memory from declarations she made to him of its contents. Likewise another witness, Mrs. Katherine Murphey to whom Mrs. Gearon had disclosed certain provisions of the will testified as to those provisions. The contents of the original will and all of its provisions were before the court in that triplicate original of the will in the possession of Mr. Hull, identical in every way with the signed original. This triplicate original will is not in truth a copy and is not secondary evidence but is a duplicate original of the signed instrument, and admissible not as secondary evidence but as original evidence of its contents, the execution of the other duplicate original having been proven. (American SuretyCo. v. Blake, 54 Idaho 1, 27 P.2d 972, 91 A.L.R. 153;Common School Dist. v. Twin Falls Nat. Bank, 50 Idaho 668,299 P. 662; Wright v. Chicago B. Q. Ry. Co., 118 Mo. App. 392,94 S.W. 555; International Harvester Co. v. Elfstrom, 101 Minn. 263,112 N.W. 252, 118 Am. St. 626, 11 Ann. Cas. 107, 12 L.R.A., N.S., 343; Leschen v. Brazelle, 164 Mo. App. 415,144 S.W. 893; Hay v. American Fire Clay Co., 179 Mo. App. 567,162 S.W. 666; Sarasohn v. Kamaiky, 193 N.Y. 203, 86 N.E. 20; Wattsv. Geisel, 100 Ind. App. 92, 194 N.E. 502.) In United States v.Manton, 107 Fed. (2d) 834, 844, the question is considered, the court saying:

"An over-technical and strained application of the best evidence rule serves only to hamper the inquiry without at all advancing the cause of truth. 'The fundamental basis,' the Supreme Court has said, 'upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation to the successful development of the truth.' Funk v. UnitedStates 290 U.S. 371, 372, 381, 54 S. Ct. 212, 215,78 L. Ed. 369. . . . . While there is some conflict in the decisions, the better rule is that so-called original and carbon copies are duplicate originals; and that one is as much primary evidence as the other. See 2 Jones on Evidence (2d Ed.) Sec. 798. They are made upon sheets of paper between which carbons have been interposed. The messages are impressed at the same time and by the same impact. To call one of them an original and the other a copy is simply to ignore the obvious."

The will signed by Mrs. Gearon was shown to have been in her possession 82 days before her death. There is not a single iota of testimony that Mrs. Gearon was ever dissatisfied with her will, other than some evidence to the effect that she had in mind drawing a new will, which she never did, or at least there is no evidence that she ever did. It must be conceded that under the provisions of section 14-307, I. C. A., a will may be revoked only by a definite act as provided in that section. There is absolutely no evidence that any attempt was ever made by Mrs. Gearon to revoke the will in conformity with the foregoing statute, or otherwise. In such event and in view of the fact that the will was in the possession of Mrs. Gearon 82 days before her death the presumption would be warranted that its existence continued.

There are certain cases cited in the majority opinion for the purpose of upholding the conclusions reached therein, but none of the cases cited apply to a state of facts such as here involved.

The trial court in my opinion was correct in reversing the probate court, denying the admission of the will to probate, and in ordering the probate court to admit the will to probate as and in lieu of the lost and destroyed will of Mrs. Gearon. The evidence submitted was sufficient to justify the admission of the will to probate.

A lengthy dissenting opinion would serve no useful purpose. The sole question is one of statutory construction and involves the question of whether or not the proof offered satisfied the requirements of section 15-231, I. C. A. In my opinion the case of McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570, 95 A.L.R. 711, is decisive of the questions presented in this cause. I am satisfied that the proof satisfied the requirements and therefore feel justified in dissenting from the views expressed in the majority opinion.