Harrison's Estate

I dissent from the view of the majority on what is said to be "the larger question involved in this appeal," stated in the opinion as follows: "May an existing will be rendered nugatory by proof of a subsequent writing alleged to have contained a revocation, where the writing itself is not produced?"

While the Wills Act prohibits oral revocation, no support can be found in the act for the proposition that a lost written revocation cannot be proved, if the secondary evidence is sufficient.¹ The pertinent portions of the act are quoted by the majority: "Section 20 says: 'No will in writing . . . . . . shall be repealed . . . . . . otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided. . . . . . ' The requirement 'executed and proved in the manner hereinbefore provided' refers back to section 2 — 'by . . . . . . two or more competent witnesses,' " as in the case of a will.

I assume that it is not proposed to overrule the cases holding that a lost will may be proved. In Foster's App.,87 Pa. 67, 75, we said: "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, or 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."² Why should we not reach the same construction of the words providing the measure of proof of the written revocation? So far as appears, in all other jurisdictions where the question has arisen, it has been held that a lost will containing a clause of revocation may be proved for the purpose of showing revocation of prior wills: James v. Cohen, 3 Curt. 770, 163 Eng. Rep. 896 (1844); In re Wear, 131 App. Div. 875, 116 N.Y. Supp. 304; In re Hedge's Will, 136 Misc. 230, 242 N.Y. Supp. 415; Estate of Johnston,188 Cal. 336, 206 P. 628; In re Thompson's Est., 185 Cal. 763,198 P. 795; Brackenridge v. Roberts, 114 Tex. 418,267 S.W. 244; Blackett v. Zeigler, 153 Iowa 344, 133 N.W. 901. See also Restatement, Contracts, section 216;³ Wigmore, Evidence, section 1267; Williston, Contracts, sections 1600, 1884; Lost Instruments, 38 C. J. 247 et seq.

Mr. Justice MAXEY concurred in this opinion.

¹ The following statement to the contrary in Shetter's Est.,303 Pa. 193, at 197, 154 A. 288, was not necessary to the decision, and is, therefore, not now controlling: "It is attempted to be shown, by the testimony of witnesses that there was a subsequent will which contained a clause revoking the earlier one, but that writing is not brought forward, indeed it is shown by their testimony that it was destroyed. The earlier will could not be repealed and wiped out in this way. It cannot be shown by oral testimony alone that a will has been revoked. A writing declaring its revocation must be produced, signed by the decedent, before an earlier will can be rendered nugatory."

² Michell v. Low, 213 Pa. 526, 63 A. 246; Rhoads's Est., 241 Pa. 38,88 A. 71; Hodgson's Est., 270 Pa. 210, 112 A. 778; Lawman's Est., 272 Pa. 237, 116 A. 538; Glockner v. Glockner, 263 Pa. 393,106 A. 731.

³ "The loss or destruction of a memorandum does not deprive it of its effect as a satisfaction of the statute, and oral evidence of the making and contents of the memorandum is admissible."