Perry v. Perry

HARDIN, P. J.

1. Nothing appears in the instrument of February, 1884, indicating that it was intended as a deed of the premises mentioned therein.

2. Nothing appears in the evidence adduced at the trial indicative that the deceased intended the instrument to operate as a deed or conveyance of the premises. On the contrary, the language of the instrument, and the evidence of the circumstances under which it was executed, unite in indicating that the instrument was intended as a last will and testament of the deceased, Ellenor Perry. She therefore had the right to revoke the same during her life. It is well settled that, where a will is not found, to be in existence at the time of the death of the testator, there is a presumption that it was revoked. It was said in Holland v. Ferris, 2 Bradf. Sur. 335:

“If a will proved to have been executed, and to have been in the possession of the decedent, cannot be traced to the custody of another, or cannot be found, the presumption of law is that it has been destroyed anima revocandi. ”

It was provided in section 67 of the Revised Statutes, as appears at page 153, vol. 3, (5th Ed.) as follows:

“No will of any testator who shall die after this chapter shall take effect as a law shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator. ”

This section fell under the eye of Judge Mason for construction in Knapp v. Knapp, 10 N. Y. 278, and, after quoting the portion of the section above given, he said:

“This statute recognizes the former common-law rule by requiring proof either that the will was in existence at the time of the death of the testator, or that the legal presumption that the testator destroyed it anima revocandi be overcome by satisfactory proof that it was fraudulently destroyed in the lifetime of the testator. ”

In that case it was held there was not sufficient evidence to authorize a submission to the jury of the question whether the will in controversy was in existence at the death of the testator, and, a fortiori, not sufficient to justify proof of its contents. In Re Nichols, 40 Hun, 387, it was held, viz.:

“Where a will, which was last seen in the possession of the testator, cannot be found after his death, the legal presumption is that he destroyed it for the purpose of revocation. ”

It seems the plaintiff supposes this action may be maintained to establish the instrument of February, 1884, as a lost will, pursuant to the provisions of article 3, tit. 3, Code Civil Proc., containing sections-1861-1867, inclusive. It is provided in section 1865 of the Code as-follows:

“But the plaintiff is not entitled to a judgment establishing a lost or destroyed, will, as prescribed in this article, unless the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime. ”

It was therefore incumbent upon the plaintiff, in order to bring his-case within the provisions of the sections to which reference has been made, to establish that the will of 1884 was in existence in 1891, at the time of the death of Eilenor Perry, or that it was fAudulently destroyed in her lifetime. No satisfactory evidence of either fact was given upon the trial. On the contrary, it does appear by evidence-that the will was, by her act, destroyed on the 3d of December, 1887. There was not sufficient evidence given upon the hearing to warrant the court in giving the relief provided for by the sections of the Code relating to establishing a lost will. We are therefore of the opinion that the trial judge properly held that the instrument of February, 1884, was not a deed, and that, upon the evidence before him, it could not be established as a lost will. We think no error was committed upon the-trial calling for an interference with the conclusion reached, and that the judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.