Tynan v. Paschal , 27 Tex. 286 ( 1863 )

Moore, J.

This is a suit to probate and establish a lost will, by parol testimony of its execution and contents. That a will lost .or destroyed previous to the testator's death, if not revoked, may be thus proved, although not in direct terms authorized by the-statute, is beyond dispute. In such cases, however, it is incumbent upon those who seek to establish the will, to prove its due-execution; and, also, to rebut the presumption of cancellation, which arises from the fact that it can not be found at the testator’s-death. The constituent facts necessary to the due execution of a will are specifically prescribed in the statute. (O. & W. Dig., art. 2116.) And these must be shown to have concurred, before an instrument purporting to be of a testamentary character can be recognized as a valid will. Their existence, however, might unquestionably be concluded by a general verdict, upon the issue of devisavit vel non, and it may be questioned, whether a party who-has failed to.ask the court to supply any omissions in its charge, can complain that the instructions given to the jury did not indicate to them all of the facts upon which they should have passed, in arriving at the conclusion manifested by their general finding. If the court had in this particular remained entirely silent, and merely left the jury to their own deductions from the law, that-may have been read to them, or in their hearing, during the progress of the cause, it could be properly said, as it has often been in similar cases, that the appellant had no reason for complaint, save that of his own negligence. But in the present case we think the jury were fairly authorized to conclude, if the testimony was sufficient to establish the facts enumerated in the first instruction given them by the court, as indicative of the due execution of a will, that they were required to find on this branch of the - case in favor of the will.

A comparison of the charge with the statute shows that the able and distinguished judge who presided upon the trial of this cause, in the court below, was less accurate on this occasion than is his usual habit. The statute requires that the witnesses to a will shall be “ credible,” the instructions of the court say, that the jury must find whether the instrument was attested by “ competent ” witnesses, without informing them what is necessary to their' competency. The discrepancy, however; in this particular is slight, and it may not unreasonably be concluded, that the word used by the court was understood by the jury in a synonymous, sense with that used in the statute. But the charge altogether omits reference to the requirements of the law that the testator must, at the execution of the will, have been over twenty-one years of age, and that the attesting witnesses must have subscribed their names in presence of the testator. The omission of the charge in the last particular becomes more important when considered in connection with the testimony, which was in this respect altogether silent, unless it can be inferred from the statement of the witness, who read the will, that it was in the usual form of wills, and the recognitions of it by the decedent as his will.

And this leads us to consider by what rules we should be governed in passing upon the question of the due execution of a lost will. Where an instrument testamentary in form is shown to have existed, what inferences are to be indulged in its favor Í And what facts must be proved to warrant the court in establishing and admitting it to probate, as a valid will ? Before considering this question, however, it may be remarked that the subscribing witnesses to the will were both dead, but the handwriting of only one of them was proved, and this by only a single witness.

If the statutory directions regulating the probate of wills (0. & W. Dig., ait. 699,) are applicable, and furnish the only rules of evidence by which the courts should be guided in all cases for their probate, it is manifest that there was a failure on the part of the plaintiff to sustain the issue of due execution of the alleged will. The language of the statute is general, and it does not very readily appear why it should not be as applicable to the probate of lost wills, except in cases of spoliation, as well as when the will is before the court. If it is urged that the loss of the instrument renders proof of its due execution, in the manner directed by the statute, more difficult, and therefore some indulgence should be extended to the necessity of the case, lest rights might be lost through the frailty of testimony, it may be answered, if the loss of the will makes proof of its execution in the manner directed by the statute more difficult, a relaxation of the rule would afford greater facility to the perpetration of fraud, and make it more difficult to meet or repel it. The-fact that the will is not, in all instances, before the court where it is being probated, may'have been one of the reasons why the stringent rules laid down in the statute are deemed necessary. At the same time it is to be noted, that while the statute declares how a “will may be proved,” it does not say that this may not be also done in some other way when, from the nature of the case, through the loss of the instrument, the rules prescribed by the statute are not immediately and directly applicable. I can not say that this view of the question, unless in cases to which the rules prescribed by the statute are clearly inapplicable, meets my approval. Yet, it seems to have been sanctioned by high authority. (See Succession of Clark, 11 La., Ann. R., 124.) And, unquestionably, when the direct proof of the execution of a will can not, owing to the nature of the case, be adduced, resort may be had to secondary evidence. But .this must be sufficient to establish, with reasonable certainty, all the facts which must concur for the execution of a valid will. It surely can not be maintained, that facts which must be established in order to give effect to the testamentary instrument, if' it were before the court, need not be proved if it is not produced. If so, the case derives presumptive strength from its intrinsic weakness. Nor does it seem legitimate or reasonable (except in cases of spoliation, when the wrongful act of withholding or destroying the means of furnishing direct testimony authorizes presumptions and conclusions which otherwise would not be indulged,) to infer its due execution from proof of facts which, if the will were before the court, would in no way tend to prove it, and which are usually and reasonably consistent with the contrary conclusion.

The direct testimony prescribed by the statute for proof of the execution of wills, is, if the attesting witnesses are living, proof of its due execution by one of them; and if they are dead, or beyond the jurisdiction of the court, proof by two witnesses of the handwriting of the two attesting witnesses, and that of the testator, if he was able to write. The mere declarations and statements made by the testator, subsequent to the completion of the supposed testamentary .instrument could not, if the will were before the court, be received as primary evidence of its due execution, in lieu of that directed by the statute. And, although the will is lost, if the attesting witnesses were within the control of the court, would not their testimony still furnish the evidence on the question, and could its place be supplied by any other ? Is it not as reasonable when the witnesses are dead, that the statutory rule of evidence should also be resorted to ? If the instrument had been so treated or handled as to be susceptible of proof in this manner, it is apprehended that there would be little doubt that the statutory rule of evidence would be applicable to it. It must be considered, though, that papers of this character are not usually entrusted to those who are disconnected with their execution; and it is, therefore, generally a difficult matter, and often an impossible one, to know who are the subscribing witnesses to a lost will. And if they are known, it would seldom be the case that their handwriting could be proved. But to this it may be answered, that the mere difficulty of making the proof required by the law, to establish a given fact, affords no reason for a departure from the rules of evidence by which courts are governed. That a will can not be established by the certain and clear testimony which the law requires for its proof, might, with much force, be urged as a reason for its rejection, rather than declaring the vague and glimmering light afforded by secondary evidence sufficient proof of its contents and execution. The due proof of the execution ,of the will is certainly as important when the will is lost, as if it were before the court; and it would seem necessary that the testimony for this purpose should be as clear and direct in the one case as the other.

The statute (O. &. W.., art. 699,) says, that “a written will may be proved by the affidavit, in writing, of one of the subscribing witnesses thereto,” but it does not state the facts that must be embodied in the “affidavit in writing;” but the clear inference is, that it must contain such as are necessary to concur for the due execution of the will. But if this direct testimony in support of the execution of the will can not be had, the statute, also, prescribes that it “may be probated on proof by two witnesses of the handwriting of the subscribing witnesses, and also of the testator, if he was able to write.” When this character of testimony can be resorted to, the statute indicates all* that it is necessary to establish by the witnesses. The law from this alone deduces the existence of all the facts incident to the duo execution of the will. But if it is admitted that other secondary testimony than that authorized by the statute may be resorted to, what facts must be proved by it ? Must not all of those which are essential to constitute a will ? Can any of them be regarded as conclusions of law, from other secondary evidence than that indicated by the statute? If not, although they may be deduced or established as inferences of fact, from proof of other facts, from which they may be regarded as legitimate sequences; yet, as the charge of the court directed the finding in favor of the will, without all the facts being ascertained, it was in this respect erroneous.

Nor can it be said, that all the facts necessary for the due execution of a will are properly and clearly deducible from those that were established in this case—at least, not in a manner to authorize the court or jury in recognizing their existence. For if they are to be inferred in favor of a lost will upon secondary evidence^ surely it should not be done on testimony of less strength and force than that which the statute requires to raise the like inference when the will is before the court. The statute requires two witnesses to the hand-writing of the subscribing witnesses. Here, there was but one witness to the hand-writing of one subscribing witness; and although the declarations of the supposed testator were properly received to rebut the presumption of a cancellation, or revocation, of the will, which arises from its loss or destruction previous to his death, and they might, also, be regarded by the jury as tending, in some degree, to strengthen the other proof as to the execution of the will; yet, they were not, of themselves, sufficient proof of it, or even to fully supply the deficiencies in the other proof. The declarations of the supposed testator were nothing more than his legal conclusions upon the facts constituting the due execution of a will, and may have been altogether imperfect or erroneous deductions from them; and, ordinarily, it must be admitted, furnish us a very uncertain and erroneous guide in arriving at proper conclusions upon such questions.

The law of Hew Jersey requires the testator to sign his name in presence of the witnesses. , Yet, in the case of Bailey and others v. Stiles and others, (1 Green. Ch. Rep., 220,) on a bill filed to establish a will, under a charge of spoliation, it was held necessary to prove that the testator signed in presence of the witnesses. Proof of all the other facts essential for the execution of the will, together with the circumstance that the testator put his hand upon the seal, and acknowledged that he signed, sealed and published it as his last will and testament, was not sufficient to authorize the inference that it was signed by the testator in the presence of the witness; and the case would have failed, but for the evidence of a person who was present at the execution of the will, though not a subscribing witness, by whom the fact was established.

In Chisholm’s Heirs v. Ben, (7 B. Monroe, 408,) it is said: “It is the due execution of the will that the witnesses are to attest, and by their subscription to authenticate. When the instrument produced is complete in form as a will; or, if not produced, it has been seen with the signature of the decedent, then the proof by the subscribing witnesses, that they subscribed upon his acknowledgment, though without seeing the signature, together with proof identifying the instrument subscribed, as the one seen in perfect form; or, in case of a lost will, the proof by the subscribing witnesses, of acknowledgment alone, might be sufficient in the absence of countervailing circumstances, to prove the due execution of the will.”

“But although the mere fact of subscription by attesting witnesses, which is made essential by the statute as a means of authentication, might be deemed in itself a sufficient ground, in the absence of repellant circumstances, to authorize the presumption of all that was necessary to constitute a proper attestation, and to justify the subscription as an act of authentication, it is very different whether and how far other facts, such as the condition of the testator, as being childless or otherwise; his desire to accomplish a particular object by his will; his declarations and acts importing a belief that he had a will, facts to which the statute gives no importance, and which have only a general bearing upon the question of testacy, should be entitled to any eifect upon the specific question of due execution of the will, for the proof of which the statute intends to provide by the attestation of subscribing witnesses.”

And in Lewis v. Lewis, (6 Serg. & Raw., 488,) it is said: “If a will of land is lost or secreted, parol proof of its contents by one witness would be sufficient, the proof of the execution being made by the requisite number.”

These authorities justify the conclusion, that to establish the validity of a lost will, it is necessary to prove its execution with the formalities and solemnities prescribed by the statute; and it should be done by direct testimony, or legally deducible from such facts as are directly established. And while recourse is to be had primarily to the statutory rules governing the probate of wills, yet other testimony may be used to aid or supply the deficiencies of memory of the attesting witnesses; or when direct testimony can not be had, or the facts of the case take it without the statutory rule, resort may bo had, in the first instance, to such as may be accessible and pertinent to the issue to be determined. But the facts to be established can not be inferred from proof of others from which they are not naturally or reasonably inferable; although, if it were not for the requirement of the statute, the act proved might be regarded as of the same legal import or effect. Eor will the declarations and acts of a party, indicating a belief that he has a will, add but little, if any, strength to the other testimony adduced to prove its due execution. The testimony relied on should be sufficient to prove all the facts necessary for the probate of the will, with as muck reasonable certainty in cases of lost wills, as in those where the will is before the court.

In this particular, the charge of the court was objectionable, and the testimony was insufficient to sustain the verdict. Before rever dug the judgment, however, it is proper that we express the conclusion to which we have come upon another question presented in the record. Appellants insist that the letter of the decedent to his attorney in fact, Smith, directing him to destroy his will, operated ipso facto as an immediate revocation of it. It is plausibly and ingeniously urged that this letter was a declaration, in writing, by the testator, written -wholly by himself, directing its caneellation. We can not, however, yield our assent to this position. The leading rule to guide in determining the construction to be placed upon all acts as well as instruments, and more especially those of a testamentary character, is the intention of the parties. Did the decedent intend, by this letter to his attorney, an immediate exercise of his right to revoke his will, by an instrument in writing executed in the same manner necessary for publishing a new will? The testimony of the witness does not induce the belief, that this is the fair or reasonable construction of the letter. Such was not the consti notion placed upon it by the witness, to whom it was directed, or by the writer of it himself. The manifest intention of the writer, and clear import of the letter, was, that the attorney to whom it was directed, should revoke the will by its cancellation, or destruction. And in such cases, it is not denied that the will remains in force, unless the cancellation, or destruction, is- carried into effect. It is unnecessary to enquire whether the language of our statute will admit of the revocation of. a will in this manner, by an attorney in fact out of of the presence of the testator.

The judgment is reversed and the cause remanded.

Reversed and remanded.