Foster's Appeal

Chief Justice Agnew

delivered the opinion of the court,

That Isaac P. Foster made and executed in due form of law a will in writing, on or about the 5th of June 1875, is an indisputable fact. That the contents of this will are clearly and fully proved, both by testimony and by written memoranda in the testator’s own handwriting, is equally plain, and no question arises as to the number of witnesses, the contents being proved by two, as well as by the memoranda furnished by the testator himself. The will not being found after the testator’s death and diligent search, two material questions arise upon the assignment of errors:

1. Whether the presumption of revocation by the testator himself is rebutted by the evidence.

2. Whether the contents can be proved by parol evidence.

There is ample evidence to rebut the presumption of a revocation by the testator. Many facts contribute to this result, among which these leading circumstances appear. Isaac P. Foster was never without a will for the last fifteen years of his life, having had seven written under the supervision of counsel and made necessary by the nature and amount of his estate, the number of his children, and advancements made to some, and those matters were often dwelt upon by himself. He, himself, regarded his will of 1875 as existing until and while lying on his death-bed, when too feeble to destroy it without assistance. Up to this time he made efforts to procure a codicil to alter the will in a certain aspect, made necessary by the failure in the payment of interest on certain bonds, but being prevented by the extremity of his last illness, died under a belief that he had arranged with his executors to pay these legatees money instead of the bonds. These and corroborating circumstances show that the testator had no thought of a revocation.

That the presumption of a personal revocation can be thus rebutted is shown by the authorities cited by the appellees. The presumption of revocation arises from the fact that the will was known to be in the possession of the testator himself, and that it cannot be found after his death. It is, therefore, a natural presumption merely, because it cannot be supposed the testator would part with it, unless he intended to put it out of the way, and because it is out of the way and cannot be accounted for, the presumption that he intended to revoke it arises. Like other natural presumptions drawn from evidence, and not declared de jure, for some legal end, it must give way to stronger evidence of the continued existence of the will, and the testator’s reliance upon it as the disposition he had made of his property.

The will then being in existence at the death of the testator unrevoked by him, its loss or accidental destruction differs not from the loss or destruction of any other solemn instrument, such as a deed, a note or bond, or a record. The contents, therefore, may be proved in like manner, as shown by the authorities cited. It is a postulate of the question that the testator left behind him at death, a last will in writing, legally executed and published; and unrevoked by any act or direction of his. That the law will not tolerate any making of a will for him by other means than his own act in writing duly executed, is clear. But such a will having a legal existence, yet accidentally lost or destroyed, the establishment of its contents is not the making of a new will, but a restoration merely of that which the testator himself made and left behind him to govern his estate. There is no greater sanctity, in this respect, than the restoration by parol evidence of other instruments equally solemn and having an equal effect in the disposition of property. The law simply comes in aid of his own legally performed act, to prevent his intentions from being frustrated or defrauded. The authorities upon the republication of wills, made before the passage of the Act of 1883, have a bearing and may therefore be cited — some not appearing in the paper-books: Havard v. Davis, 2 Binn. 406; Jones v. Hartley, 2 Whart. 103, citing many cases; Campbell v. Jamison, 8 Barr 498 ; Jack v. Shoenberger, 10 Harris 416; Fransen’s Will, 2 Casey 203. We cannot perceive that the learned judge erred in ruling either point.

In regard to the right to an issue there is no difficulty. True, the right to a jury trial is given in the 41st section of the Act of 15th March 1832, relating to registers and registers’ courts, whenever a dispute upon a matter of fact arises before any register’s court; but the request for it must come in due time. Here no request was made, but the case was submitted to the judge of the Orphans’ Court, was fully argued, and the papers were in his possession for an opinion and decree. On application for a re-argument he permitted it. But he did not re-open the case for all purposes. If, under the pretext of a request for a re-argument, it was intended to cover up an intention to force an issue and thus delay a cause already fully submitted to a competent tribunal, it was not such a request as the court was bound to regard. It was in the sound discretion of the court then to allow an issue or not. There was no abuse of its power in his refusal.

We discover no other matter worthy of serious notice.

The decree of the Orphans’ Court is therefore affirmed, and the appeal of the appellants dismissed at their costs, which they are ordered to pay. .