Estate of Bowles v. Heirs of Bowles , 96 Ohio App. 265 ( 1953 )

I dissent from the opinion and judgment of the majority of the court in their reversal of the judgment of Probate Court on the asserted ground that said judgment is contrary to the manifest weight of the evidence.

Since a majority of the court may reverse on the weight of the evidence in a case tried to the court without the intervention of a jury, thus requiring a new trial of the issues of fact, I see no advantage in a detailed discussion of the evidence at this time. However, as I am not in accord with the majority with respect to the principles of law applicable to this issue. I deem it appropriate to express briefly my views referring only to so much of the evidence as may be necessary to point up the issue of law involved.

I cannot concur in the view expressed in the majority opinion that we are not here concerned with the presumption of revocation, and that the 1932 amendments of Sections 10504-35 and 10504-38, General Code, had the effect of changing the rule of law with respect to the presumption of destruction of the will by the testatrix animo revocandi as applied to the facts and circumstances of the present case.

The statute law of Ohio relating to the probate of lost, destroyed or spoliated wills is contained in Sections 10504-35 to 10504-40, inclusive, General Code, all as amended effective January 1, 1932.

Sections 10504-35 and 10504-38, General Code, which are particularly pertinent to the issues in the present case read as follows:

"Section 10504-35. The Probate Court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of such testatorif testator's lack of knowledge of such loss, spoliation ordestruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate." (Emphasis added.)

"Section 10504-38. If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator if his lack ofknowledge of such loss, spoliation or destruction can be provedby clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony taken in the case to be recorded in such court."

These sections are similar to former Sections 10543 and 10546, General Code. The new portion which is identical in each section reads, "or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony." These quoted words of the sections as amended are tantamount to saying that clear and convincing evidence is required to show that the testator did not lose or destroy the will with the intention of revoking it, but the legal presumption that he did so is not thereby destroyed, but remains until overcome by proof to the contrary. It may be argued that the prevailing presumption and the applicable statutes place a great burden upon the proponents of lost, destroyed, or spoliated wills, but in this connection it is well to observe that prior to the amendments of 1932 there was no provision at all in Ohio, statutory or otherwise, for the probate of a will that had been lost, destroyed or spoliated during the life of the testator.

Considering the evidence pertinent to this issue, it is undisputed that, following the execution of her will by the testatrix on November 9, 1946, it was taken by her into her sole custody and control and so remained for some period of time, the length thereof being uncertain. But at her death on November 17, 1951, the will could not be found. In fact, so far as the record before us discloses, it was never again seen by any person other than the testatrix. The evidence further shows that a guardian was appointed for the testatrix on or about September 15, 1950, and continued to act in that capacity until her death. But neither the guardian nor any other person has been able to discover the original duly executed will although an unsigned copy thereof has been found.

It is well settled in Ohio that when a will once known to exist and to be in the custody of the testator cannot be found after his decease, a legal presumption arises that it was destroyed by the testator with the intention of revoking it. See the second paragraph of the syllabus of Behrens v. Behrens,47 Ohio St. 323, 25 N.E. 209, 21 Am. St. Rep., 820. See, also,Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264 and the recent case of In re Estate of Tyler, 159 Ohio St. 492,112 N.E.2d 668. See, also, 41 Ohio Jurisprudence, 425, 426, Wills, Section 256 and Ohio cases there cited.

This presumption of law is not only well settled in Ohio, but is in accord with the overwhelming weight of authority in other jurisdictions. See 57 American Jurisprudence, 377, 378, Wills, Section 549, and supporting authorities there listed too numerous to cite here at length.

In the case of In re Estate of Tyler, supra, decided May 27, 1953, our Supreme Court once again had occasion to construe the sections of the General Code relating to the probate of lost, spoliated or destroyed wills. It should be emphasized, I think, that the Tyler case was decided some 21 years after the 1932 amendments to the code sections here cited and quoted. Nevertheless, the Supreme Court in that case reaffirmed the doctrine of presumptive revocation enunciated in Behrens v.Behrens and Cole v. McClure, supra. (See pages 497, 498 and 502 of In re Estate of Tyler.) In the Tyler case, Judge Stewart, in an opinion speaking for a unanimous court, quoted verbatim Sections 10504-35, 10504-36, 10504-37 and 10504-38, General Code, all as amended effective January 1, 1932, after which, as shown at pages 497 and 498, he quoted the entire syllabus of Cole v.McClure, supra.

For the purposes of this discussion, I quote only paragraph three of the syllabus of the Cole case, which reads as follows:

"3. Where a will has been lost or destroyed before the deathof the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became ``incapable by reason of insanity to make a will.'" (Emphasis added.)

Judge Stewart then declared at page 498 as follows:

"The same rule applies with reference to a will which has not been lost or destroyed but has been mutilated, even though it is proved, as it was in this case, that decedent properly executed it."

The opinion also quotes with approval from 57 American Jurisprudence, 378, Section 550. I quote only a part thereof as follows:

"It would be inconsistent to hold that a total absence of the instrument sought to be probated raises a presumption thatthe testator destroyed it with intent to revoke it, and to refuse to hold that the production of a mutilated instrument, shown to have been in the possession of the testator, cannot raise a presumption that the mutilation was done by the testator with intent to revoke the will." (Emphasis added.)

From these authoritative decisions, I conclude that, since the original will was in the sole custody and control of the testatrix from the time of its execution and could not be found at her death, there is a legal presumption that she destroyed it with the intention of revoking it. This presumption of revocation is, of course, not conclusive, but may be overcome by circumstantial or other proof to the contrary. Behrens v.Behrens, supra. See, also, Hutson v. Hartley, 72 Ohio St. 262,74 N.E. 197. Therefore, under the issues of this case, the burden is cast upon the proponents to produce evidence sufficient to overcome the presumption of destruction by the testatrix animo revocandi and to show by clear and convincing testimony that the original will was lost or destroyed before her death without her knowledge.

I need not here discuss the jurisdictional limitations imposed by law on the Courts of Appeals of Ohio in reversing judgments of trial courts upon the weight of the evidence. Suffice it to state that a judgment of the trial court must be manifestly against the weight of the evidence to justify a reversal on that ground. This is particularly true where the law requires a higher quality and quantity of evidence than is sufficient in ordinary cases to support a judgment by the preponderance of evidence. See Cole v. McClure, supra, paragraph one of the syllabus, approving Ford v. Osborne, 45 Ohio St. 1,12 N.E. 526.

Considering the prevailing presumption and the applicable statutes and the evidence now before us for review, I cannot find that the judgment of the Probate Court should be reversed on the ground that it is contrary to the manifest weight of the evidence, and, for this reason, must register my dissent.

I concur in the judgment of reversal in respect to the following assignments of error:

"IV. The Probate Court erred in excluding Rose Tulley from the hearing of February 14, 1952, on the application to probate the will and codicil. Being an interested party and a proponent, she was entitled to be present as a matter of right.

"V. The Probate Court erred in denying the motion of the appellant, Western Reserve University, to intervene and present additional evidence. In view of the interest of the appellant as a principal beneficiary and the fact that the application was made prior to the entry of the court's decision, the motion should have been granted and the appellant allowed to present additional evidence as a proponent of the will."

VIII. It appears from the evidence that the appellants, Geraldine Hart Brooks and Dorothy E. Hart, sisters, are cousins of decedent, who were not served with notice or summons as were thirteen other cousins as shown on the face of the record. The issue of whether they were next of kin should have been determined by the court.

VI, VII, and IX. In consideration of all of the foregoing, the motions of the several appellants for a new trial should have been granted for the reasons generally and more fully set forth in the majority opinion.