Lord, Estate of Lord , 106 Me. 51 ( 1909 )

Bird, J.

This appeal from the decree of the Judge of Probate of Somerset County approving and allowing the last will and testament of Leonard Lord is reported to this court from the Supreme Court of Probate for decision upon so much of the evidence as is legally admissible.

It is admitted that the will of 1903, which was allowed by the Judge of Probate, was at the time of its execution, a valid will but it is the contention of the contestants that the testator in the summer of 1905 made a second will, lost or destroyed, which, by reason of its inconsistent provisions worked a revocation of the earlier will.

The existence of a lost will must be proved by evidence clear, strong, satisfactory and convincing: Connor v. Pushor, 86 Maine, 300, 302; The evidence must be strong, positive and free from doubt; Newell v. Homer, 120 Mass. 277, 280; See also Liberty v. Haines, 103 Maine, 182, 190-2. If the instrument, propounded as a revocation of a will, be in the form of a will, it must be perfect as such and subscribed and attested as required by the statute; Doane v. Hadlock, 42 Maine, 72, 74; Laughton v. Atkins, 1 Pick. 535, 541; See also Kimball v. Morrell, 4 Maine, 368; Dunlap v. Glidden, 31 Maine, 510.

Neither of the alleged witnesses to the will alleged to have been made in the office of Mr. Davis saw the signature of Leonard Lord upon any instrument and it may be doubtful, at least, if Lord’s acknowledgment flowing from the request of Davis to Carr to act as a witness, if made, dispenses with proof of his signature: II Greenl. on Ev., § 676. Nor does the testimony of Carr and Corey as to the attestation of the alleged will appear to meet the degree of proof required. Neither is certain that he subscribed a will as a witness, neither is certain that the other signed the same instrument and neither can state that any third witness signed. And we are not aware of any presumption that under the circumstances Abel Davis signed the paper signed by either of the other witnesses. But it is unnecessary to determine these questions, since, as we must find as matter of fact from the testimony of Mr. Foster that the transaction in the office of Mr. Davis took place on the twenty-eighth day of September,-1905, there is no proof whatsoever of the contents of that paper, — that it contained a revocation clause or made dispositions of property inconsistent with the will of 1903. It cannot, therefore, whether duly executed or not, be material evidence tending to prove revocation of the will of 1903.

The testimony of Daisy P. Bartlett as to the attestation of the alleged will shown her by Lord in August, 1905, Is also insufficient to prove due attestation of the will. As she is unable to give the names of two of the alleged witnesses, there can be no proof of their signatures. Her testimony as to the alleged signatures of Abel Davis as a subscribing witness, if offered in support of its genuineness was clearly inadmissible as it is not shown that she had ever seen him write or was then familiar with writings acknowledged to be his, or that she was an expert in handwriting who had qualified herself to testify in the case. Moreover, in view of her oral declarations and those contained in her letters made and written in the summer of 1906 to the effect that the alleged will was signed by two people as witnesses and that she had no recollection of the names of any of the witnesses, the evidence that Abel Davis’ name was upon the alleged will is neither convincing nor free from doubt. It is not necessary to add that, as we have found that the transaction in Mr. Davis’ office occurred in September, the alleged August will can receive no aid therefrom.

It is not believed that the contestants very seriously urge that the water stains and pencilings upon the will of 1903 worked a revocation of that instrument. There is no extraneous evidence of the circumstances attending the water staining or the pencilings nor evidence of declarations of the testator made when they were made. The water stains do not render the will or any part of it illegible and are apparently the result of an accident in which the unexpired policy of insurance and sundry bank books of the testator were equally involved. The pencilings were made by the attorney of testator and, if assumed to have been made by his direction and in his presence (K. S., c. 76, § 3,) of which there is no evidence, we must conclude, in view of the draft made by the same attorney closely following it and its interlineations and containing a revocation of all former wills and in view of the continually manifested desire of the testator not to die intestate, that the pencil changes were but instructions for the making of a later will which should revoke the earlier and do not indicate that they were made with an intention of immediate revocation. Where a will is once regularly made, the presumption of law is strong in jits favor, and the intention to revoke must be plain and without doubt. Throckmorton v. Holt, 180 U. S. 552, 584-585, 587. See Strong's Appeal, 79 Conn. 123.

The will of 1903 was found in the secretary and not in the safe of the testator, where his more valuable papers were kept, but this fact taken in connection with either the water stains or the pencilings, or both, does not afford’ evidence from which an animus revocandi can be found or presumed: Throckmorton v. Holt, supra: Williams v. Williams, 142 Mass. 515: Fellows v. Allen, 60 N. H. 439.

Decree of the prohate court affirmed with costs.