
    George B. Collyer, App’lt, v. Charles S. Collyer, Administrator of Elizabeth Collyer, Deceased, et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Will—Presumption op revocation from failure to find.
    When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof.
    3. Same—Lost will—Burden of proving that it was not revoked on proponent.
    He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed.
    3. Same—What facts not sufficient to overcome presumption.
    On proceedings instituted under Code Civ. Pro., § 3631, to establish the will of deceased alleged to have been fraudulently destroyed, the petitioner gave evidence tending to show that in 1863 the deceased made such a will as he claimed, that she left the will in the custody of the lawyer who drew it, until about the year 1877, when she took the will into her own possession and soon thereafter exhibited a folded paper which she claimed was her will. Witnesses called on behalf of the petitioner testified to declarations made by the deceased at various times, but not later than seven months prior to her decease,, which was in March, 1883, to the effect that she had made a will giving all her estate to her brother George. Witnesses were called who testified to declarations made in February of 1883, to the effect that she had changed her intention in reference to her said brother and had destroyed her will. Held, that there was not sufficient proof that the alleged will was in existence at the time of the decease of testator, or that it was fraudulently destroyed in her lifetime. That the petitioner wholly failed to make out his case.
    4. Costs—Code Civ. Pro., § 2558, subdiv. 3, does not relate to proponents of A WILL.
    The provision of Code Civ. Pro., § 2558, subdiv. 3, relates to an unsuccessful contestant of a will, and has no concern whatever with a proponent of a will. Where the petitioner sought to establish a will in which he was the sole beneficiary, the surrogate is by section 2558, Code Civil Procedure, clothed with discretion not reviewablo by court of appeals to award costs against him personally in favor of one or all of the contestants.
    Appeal from a judgment of the supreme court, general term, second department, affirming a decree of the surrogate of Westchester county, refusing to admit to probate the will of Elizabeth Oollyer as a lost'or destroyed will.
    The facts are sufficiently stated in the opinion.
    
      Dennis McMahon, for app’lt; Seaman Miller and A. Britton Havens, for resp’ts.
    
      
       Affirming 3 N. Y. State Rep., 135.
    
   Earl, J.

Elizabeth Oollyer died in Westchester county, on the 4th of March, 1883, possessed a considerable estate. George B. Oollyer claiming that she had made a will, devising and bequeathing all her estate to him, and appointing him the sole executor thereof, and alleging that the will had been fraudulently destroyed, instituted this proceeding in the surrogate’s court under section 2621 of the Code, to establish the will. The administrator and next of kin and heirs of the deceased, were made parties to the proceeding, and they opposed the contested probate of the will.

The petitioner, George B. Collyer, gave evidence tending to show that in 1863, the deceased made such a will as he claims, that she left the will in the custody of the lawyer who drew it, until about the year 1877, when she took the will into her own possession, and soon thereafter exhibited a folded paper, which she claimed was her will. Witnesses were called on behalf of the petitioner, who testified to declarations made by the deceased at various times, but not later than seven months prior to her decease, to the effect that she had made a will, giving all of her estate to her brother George, and witnesses were called on behalf of the contestants, who testified to declarations made by her in the years 1882 and 1883, the last in February," of the latter year, to the effect that she was displeased with the treatment received by her from her brother George; that ¿she had changed her intention, in reference to him, and had destroyed her will.

Upon all the evidence, the surrogate found as matter of fact, that there was a want of sufficient legal proof that "the deceased ever executed a will; that there was a want of sufficient legal proof of the contents of any will; that nt the time of her death she left no will in existence, and that no will of hers was fraudulently destroyed in her lifetime; and he held as matter of law, that the alleged will should not be established or admitted to probate as a lost or destroyed will, and that the deceased died intestate..

The decision of the surrogate was affirmed at the general term, upon the ground, as appears from the opinion there pronounced, that there was not sufficient proof that the alleged will was in existence at the time of the decease of Mrs. Collyer, or that it was fraudulently destroyed in her life-time.

Without passing upon the other grounds upon which the surrogate based his decision, we agree with the general term. It is provided in the Revised Statutes (2 R. S., chap. 6, tit. I., art. 3, § 42), as follows: “No will except in the cases hereinafter mentioned, nor any part shall be revoked or altered, otherwise than by some other will in writing or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, canceled, obliterated or destroyed with the intent and for the purpose-of revoking the same by the testator himself, or by another person in his presence, by his direction or consent, and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction shall be proved by at least two witnesses.,

The claim of the petitioner is that the will of Mrs. Collyer was not destroyed by herself, but by some other person, without her knowledge or consent. This claim is wholly unsupported by proof. No witness was called who had seen the will since 1877, and there is no evidence whatever that the will was in existence during the last seven months of her life, and the most diligent search failed to disclose, any trace of it after her death. The evidence simply shows that several of her next of kin were about her for a short-time before her death, and in her house afterward, and thus may have had opportunity to find and destroy the will. But all such persons were called as witnesses, and positively denied any knowledge of the will or any interference-therewith, and thus there was not enough evidence even to raise a fair suspicion that the will had been fraudulently destroyed.

There is no direct proof that Mrs. Collyer destroyed her will. But the proof that the will was not found after her death is sufficient proof that she destroyed it anima revocandi. When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator and this presumption stands in the place of positive-proof. Betts v. Jackson, 6 Wend., 173; Knapp v. Knapp, 10 N. Y., 276; Schultz v. Schultz, 35 id., 653; Hatch v. Sigman, 1 Dem., 519. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed.

In Loxley v. Jackson (3 Phil. Rep., 126), the will was last seen in a small box in the bedroom of the deceased, but was not found after her death, and it was held that the presumption of law was that the testatrix destroyed it anima revocandi, that the law did not presume fraud and that the burden of proof was on the party claiming under the will.

In Betts v. Jackson (supra), a will was duly executed and in the custody of the testator for five years afterward, and within ten months previous to his decease, but could not be found after his' decease, and it was held that the legal presumption was that the testator had destroyed it anima revocandi, although it appeared that within a fortnight before his death he applied to a scrivener who had drawn a codicil to draw another codicil to his will, which, however, was not drawn nor was the will at the time produced to the scrivener.

In Knapp v. Knapp (supra), it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his possession in a certain desk at his house, that he was then very aged and feeble, that his housekeeper was a daughter having an interest adverse to the will, and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator’s death, or of a fraudulent destruction in his life-time to authorize paroi proof of its contents. The authorities are uniform, and no further citations are needed.

As the evidence on the part of the petitioner wholly failed to make out his case, he was not harmed by any of the evidence offered and received on behalf of the contestants to which he makes objection, and such objections need not therefore be considered.

_ The surrogate, in his decree, allowed costs against the petitioner personally to the several contestants, and he complains of this relying for his protection upon sub-division 3, of section 2558 of the Code, which is as follows: When the decree is made upon a contested application for probate or revocation of probate of a will, costs payable out of the estate or otherwise, shall not be allowed to an unsuccessful contestant of the will unless he is a special guardian for an infant, appointed by the surrogate, or is named as an executor in a paper proposed by him in good faith, as the last will of the decedent.” That provision plainly relates to an unsuccessful contestant of a will, ana has no concern whatever with a proponent of a will. The petitioner sought to> establish a will in which he was the sole beneficiary, and by the same section the surrogate was clothed with discretion not reviewable here to award costs against him personally in favor of one or all of the contestants.

Our conclusion, therefore, is that the judgment appealed from should be affirmed, with one bill of costs to the respondents.

All concur.  