
    (88 Hun, 103.)
    HARD v. ASHLEY et al.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    Wills—Revocation—Presumption.
    Where a will was last seen in the possession or under the control of testator, and at his death could not he found, It will be presumed that testator destroyed it animo revocandi.
    Appeal from Monroe county court.
    Action by Jeannie T. Hard against Charles O. Ashley and others for partition. From a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals.
    Reversed.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    William A. Sutherland, for appellant
    John A. Barhite, for respondents.
   WARD, J.

This action was instituted in the Monroe county court to partition certain premises owned by Eliza Ashley, of Rochester, situated in that city. Eliza Ashley died on the 17th of April, 1893, and the plaintiff and the defendants Charles O. Ashley and John H. Acker were her only heirs at law. The issue made by the pleadings was whether Eliza Ashley died intestate. The defendants claim under an alleged will of the deceased, which deprived the plaintiff of any interest in the property. At the close of the evidence the plaintiff’s counsel moved for the direction of a verdict for the plaintiff, which the court denied, and the jury rendered a verdict for the defendants. Upon the pleadings and conceded facts at the trial the plaintiff was entitled to a verdict, unless a will was established, made by the deceased, preventing. There was no such will established upon the trial. A witness was examined on defendants’ behalf, who testified, in substance, that he drew a will for the deceased from a memorandum given him; that he signed the will as a witness at her request; that his father was one of the witnesses'; that the will was read over to the deceased, and she signed it. Other witnesses referred to the fact that a will was prepared, and that they had seen a will, and there was talk about a will in which the deceased participated, but the proof came far short of establishing an instrument that would devise real estate, executed and published as required by the statute. It is true that proof of a lost will is necessarily secondary, and the law accepts the best evidence that the nature of the case admits as to its valid execution and contents, and in such a case as this the defense may establish the will by a single credible witness (Harris v. Harris, 26 N. Y. 433), yet it must be shown that the will was executed with all the formalities required by the statute, and that the testator was of sound mind, and under no restraint. There was an entire absence of proof as to the contents of the assumed will; nothing whatever to show that the plaintiff’s apparent title as an heir to one-third of the property sought to be partitioned had been impaired or destroyed. The case, therefore, of the defendants was not established, and it was error not to direct a verdict for the plaintiff. The defendants seek to excuse this omission by alleging that the proof of the execution of this will and its contents was excluded by the court upon the plaintiff’s objection, and seem to assume that the plaintiff is estopped thereby, and deprived of the benefit of the objection of the want of such testimony here. The court sustained the objection to certain evidence offered by the defendants, which, if admitted, in connection with sufficient other evidence (which the defendants did not offer to show), might tend to establish the will; but the trial court regarded the objection as well taken, and ruled in favor of the plaintiff, and the soundness of that ruling is not before us for consideration. It would be a novel proposition, indeed, that the needed proof to establish a will or prove its contents by parol could be worked out by way of estoppel, founded on the sustained objection of the opposing party; but, assuming that it had been established that the decedent had made in her lifetime a will excluding the plaintiff from all rights in the property, a further difficulty is presented which has been earnestly pressed upon our attention.

"Upon the death of Mrs. Ashley, and after thorough search made, no will was found. • The last we learn of this assumed will is from the witness Edward Webster, who says he had drawn a will for the deceased before, and in her last sickness she sent for him about a week before she died. She was confined to her room, and he adds: “She called a young lady to get the will, and told her where it was, and she went and brought it in. I don’t lmow anything as to where it was, except from something they said, I think she told the girl it was in the bureau. Mrs. Ashley was upstairs at that time. This bureau was in another room. I don’t know whether it was upstairs or not. The girl returned with the will, and I examined it.” The will was left with the deceased, or under her control. This was the last seen of the will, so far as the testimony goes. The plaintiff was the granddaughter of the deceased, and she, with one or two other relatives of the deceased, took care of her for several weeks previous to her death. The defendant Charles O. Ashley and his daughter and other members of the family were in attendance more or less upon the deceased during that time. Evidence was given by the defendants tending to show that the deceased had some objection to the plaintiff being there at that time, and that the plaintiff had made expressions of disrespect towards the deceased, and had written some letters to the stepmother of the plaintiff, ridiculing the deceased, and the deceased had said that the plaintiff was there only for the loaves and fishes, but she would be disappointed. The plaintiff’s stepmother was also in attendance upon the deceased, having gone there before the plaintiff; and the plaintiff had expressed in her letters to this stepmother that she hoped that she would get well paid, or get the property of the deceased, for talcing care of her. It appeared also from the defendants’ evidence that at one time some time prior to the death of the deceased what was called a will was seen in a Family Bible that was in one of the rooms of the house (that was before the will was seen by Webster as stated); and that at some time the plaintiff was seen reading this Bible, or looking through it, but it did not appear that the will was there at the time. The plaintiff was seen at one time looking through a book of poems, and the trial court charged the jury that there was evidence showing that the will had been seen in this book of poems. This statement was a misdirection by the court, there being no such evidence in the case. The plaintiff testified that she never saw the will. The same statement was made by the other witnesses who were in attendance upon the deceased. Several witnesses testified uncontradicted to seeing a letter from the deceased, written in December, 1892, to the plaintiff, in which the deceased asked the plaintiff to come and take care of her, and she could have what property she had; that she (the deceased) was sick, and alone, and had no one to do anything for. her; that her son Charles (the defendant) was a brute; that he never came near her to do anything for her; and requested an answer. It appeared that after the death of Mrs. Ashley there was some talk of settlement between the parties, and the plaintiff proposed that her interest in the property should go to the defendant Charles for life, with reversion to herself. The witnesses on both sides, as is unfortunately the case in family controversies, exhibited bitterness towards each other, and there was some contradiction as to the facts. Several witnesses spoke of a letter- of instruction that the deceased had executed, and had among her papers, directed to her son Charles, stating what she wanted done with her property after her death. One witness, who saw it, described it as a package of yellow sheets, and this was to be given to Charles in case the deceased did not live; otherwise it was to be destroyed. This was during her last illness. This letter of instructions was not found after her death. The deceased was 91 years of age. Her mind was clear and bright, and there was no question but what her mental condition was good. Some evidence was given touching her ability to leave her room after Webster’s visit, but it does not appear but what she could have reached her will, and had control of it, if she had desired to, after Webster’s visit. The evidence did not disclose who the young lady was that brought the will, nor did it disclose any act on the part of the plaintiff pointing to the destruction of the will. Such a destruction would be a crime, and a party is not to be convicted of such an act upon suspicion or surmise, but only upon substantial evidence proving it.

It is elementary that the law never presumes a will in the absence of proof. If it be established that the decedent made a will, such as the statute permits, to dispose of property, and it was last seen in the possession or under the control of the decedent, and at his death no will can be found upon proper search, the presumption obtains that the will was destroyed by the testator animo revocandi. In re Florence, 2 Bradf. Sur. 281; Idley v. Bowen, 11 Wend. 227. The law upon this subject is so well stated in Collyer v. Collyer, 110 N. Y., at page 486, 18 N. E. 110, in a case much like this in its leading features, that we cannot do better than to reproduce it here:

“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 animo revocandi. When a will previously executed cannot be found after the death of a testator, there is a strong presumption that it was revoked by destruction by the testator; and this presumption stands in place of positive proof [citing Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 N. Y. 653; Hatch v. Sigman, 1 Dem. Sur. 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 Phillim. Ecc. 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 animo revocandi, that the law did not presume fraud, and that the burden of proof was on the party claiming under the will. * * * 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 lifetime, to authorize parol proof of its contents. The authorities are uniform, and no further citations are needed.”

Within the rules thus laid down, from a careful examination of this evidence it is doubtful whether there was sufficient evidence to justify the jury in holding that the plaintiff, or any one else, destroyed this will, with a fraudulent intent, or that it was lost by accident. The deceased was capricious, as sick and aged people often are. She seemed inclined first to one of her relatives, and then to another, and it might well be, if she had made a will, or given letters of instruction, that in a moment of perplexity or doubt as to just what she should do with her property came to the conclusion to destroy all papers, and let the law distribute it among her heirs.

The judgment and order reversed, and a new trial granted, with costs to abide event.

LEWIS, J., concurs. BBADLEY, J., concurs in the result.  