
    INSUFFICIENT EVIDENCE TO ESTABLISH A MISSING WILL.
    Probate Court of Franklin County.
    In the Matter of the Alleged Spoliated Will of Mary L. Thompson, Deceased.
    Decided, July 17, 1914.
    
      Wills — Conditions Under' Which a Spoliated Will 'May be Admitted to Probate — Declarations of Decedent and Her Husband as to Existence of Will — Failure to Establish Contents With Precision.
    
    1. A will being in tbe custody of a person other than a testator,. and not being in existence after death of the latter who was incapable of revoking it, or not having access to it, it must have been fraudulently destroyed in the lifetime of the testator, or subsequent to his death. If so destroyed it was' fraudulently so done, and the legal result is the same precisely as if it had continued in . existence up to the time of the death of the testator.
    2. To establish the contents of a spoliated will upon declarations alone of the testator, without other clear and convincing evidence as to the precise provisions of the will would be an unsafe rule of evidence.
    3. A spoliated will can not be admitted to probate, notwithstanding declarations which sufficiently establish its existence' at the time of the death of the testator, if it- is impossible to determine its contents by clear and convincing evidence as lo its provisions.
    
      Franklin Rubrecht and Louis A. Alcott, for proponents.
    
      Charles J. Pretzman, Thomas H. Bennett, Frank Frebis and Charles E. Nixon, contra.
   Kinkead, J..

(acting probate judge).

This is an application to probate an alleged spoliated will, The testimony offered to prove the making of the will consists of one of the witnesses thereto — the other being deceased — and of quite a number of persons who heard the declarations made by the deceased to the effect that she made a will. The evidence shows that declarations to this .effect were made by both the deceased and her husband, that they had both made their wills, and that they had been deposited in the safe of the husband in his law office.

The declarations of Mrs. Thompson clearly show that she had made a will; these, together with the declarations made by the husband, tend to prove that he had also made a will;,the evidence also discloses that the wills had. been deposited in the safe of the husband; and that, at least, her will had been in his possession up to within two or three days prior to her death.

There is no definite and positive testimony as to the full and precise contents of the will; no witness is produced who either read or heard it read. There is nothing to show the contents of the will' except declarations made by the deceased. The real .estate was in the name of Mrs. Thompson. It had been acquired by the husband with the exception that seven hunfflred dollars had been contributed thereto by Mrs. Thompson, which sum she had received from the estate of her parents.

The following are substantially the facis which the evidence tends to prove: Mrs. Thompson stated that both had made their wills, and that the properly was to be divided, half and half, between the two nephews, Bennie Parker on her side, and Dean Weiriek on the husband’s side. One important item of evidence, the effect of which counsel did not comment upon, was to the effect that on one occasion Mrs. Thompson declared that the wills were both in the safe, but “she knew it would not amount to that” (witness snapping her fingers) ; that she was afraid to take her will away from her husband’s office for fear “he would take his away and destroy it,” and that she could hot “tell who will go first.” Again, she said, “AVe have got them both fixed for the two boys”; that “Bennie and Dean'will both be fixed.” In the last illness of the wife the husband declared, “Well, we have got, our wills both made and they are up in my office in the safe; but I am not going to give her up yet.” Through a period of years Mrs. Thompson made declarations to different persons that she had made her will; that the two had made’their wills; that her sister, Mrs. AAaleutt, was to get her diamonds, and her nephew and her husband’s nephew were to get the real estate in equal shares; that after both of their deaths, the property was to be divided between the two nephews. After the death of Mrs. Thompson, her husband declared that he was not going to give the diamonds to Mrs. Waleutt; that it did not make any difference what his wife wanted; that all they wanted was his money and diamonds; that he was not going to give it to them; that he could not help what their wanted, he was not going to let them have a thing — no money, no diamonds, or anything.

The declarations of both Mrs. Thompson and her husband showed that the latter had custody of the will. The declaration of the husband on Thursday night previous to his wife’s death on Sunday, November 30th, 1913, showed that he had custody of her will. It is apparent from her condition and the circumstances that she was unable thereafter to obtain her will, that is, between the time he made the declarations that the will was in his safe and her death on Sunday evening.

Without further review of the testimony, all of it substantially shows the above to be the claims of the proponents of the will.

Two questions are, therefore, presented:

First, was the will destroyed subsequent to the death of the deceased. ' . :

Second, have the contents been sufficiently proved.

The statute permitting spoliated wills to be probated explicitly requires that the will must have been unrevoked at the death of the testator, and that it has been lost, spoliated or destroyed since his or her death. Code, Section 10546.

The degree of evidence required to establish both the execution and existence of the will and its contents is that it must be clear, strong, positive, free from bias, and convincing beyond a reasonable doubt. Cole v. McClure, 88 O. S., 1.

I am of the opinion that the rule applies to the facts- in this case, as contended by counsel for the proponents of the will; that, it being out of the custody of the testator, there is no presumption from failure to find the will that it was destroyed by the deceased.

I think the rule of the case of Schultz v. Schultz, 35 N. Y., 653, might properly be applied in this case, because the statute of New York, under which the case was decided, is precisely the same as the one in Ohio as to the existence of the will subsequent to the death of the testator. That is, the will being in the custody of another, if it was not in existence after the death, and the testator was incapable of revoking it, or had not access to it, it must have been fraudulently destroyed in the lifetime of the testator, or subsequent to the death. The fraud in such ease is upon the testator by the destruction of her will, so that she will die intestate, when she intended and meant to have her estate disposed of by will, and never evinced any change of that intent. If so 'destroyed, it was done fraudulently as to her, and, in judgment of law, the legal results are the same .precisely as if it had continued in existence up to the time of her death. And it is true that the fact of the existence of the will subsequent to the death can, like any other fact, be established either by presumption or circumstantial evidence, as well as by direct evidence. Gibson v. Gibson, 6 C.C.(N.S), 269.

It seems entirely probable that if tbe will was in tbe safe of the husband on Thursday night prior to the death of the decedent, when he made the declaration that it was there, it was probably destroyed under such circumstances that it might come within the rule above stated, -and might well be considered as a will destroyed subsequent to the death of the testator.

The court would be entirely satisfied to admit the will so far as this point is concerned if the contents were established beyond a reasonable doubt and by clear, strong, positive evidence, which was free from bias. The serious and doubtful question is as to the contents of the will.- If there is a reasonable doubt as to this matter, it can not be admitted to probate.

The question whether or.no the declarations of a decedent or testator are alone sufficient to prove the contents of a will is- an important one which does not seem to have been considered by the courts to a very great extent. And some of the cases are not very satisfactory, because they do not go into the reason and logic of the question. Of the decisions cited by the texts upon wills, Schnee v. Schnee, 61 Kan., 643, seems to be the only one clearly maintaining the view that such declarations alone may be sufficient.

McDonald v. McDonald, 142 Ind., 55, when carefully read and considered, does not squarely decide the question.

Other adjudications support the view that evidence of the declarations of the testator is admissible to corroborate the testimony as to execution and contents of a will. Lane v. Hill, 68 N. H., 275.

Other well considered cases are to the effect that such declarations are not alone sufficient to prove the contents of a lost Will. (Mercer v. Macklin, 14 Bush. (Ky.), 434; Clark v. Morton, 5 Rawle (Pa.), 23; Clark v. Turner, 50 Neb., 290.) The latter ease is a very carefully considered one.

The uncertainty and doubt cast upon the question of the con-' tents of this will by the declarations of the deceased and her husband, all considered together, furnish illustration of the dangers incident to the adoption of such a rule, especially when it will operate to destroy the effect of statutory provisions relating to the making and probate of wills. It is a general fundamental rule of evidence that declarations of persons are always to'be received by the triers of facts with caution, for the reason that they may not have been perfectly understood, they may not have been accurately repeated, so that the full effect of all that may have been stated by the declarant may be reproduced. And this rule should be especially observed in a case like this.

As was well stated in the case of Chisholm v. Ben, 7 B. Mon., Ky., 408:

“It is better that occasional injustice should be done in exceptional cases upon failure of legal proof, than that transactions within the statute should in all cases be left to the uncertainties of parole evidence. So the courts in giving effect to the statutes should pursue the same policy, and should avoid meeting hard cases by adopting rules which, generally applied, would defeat the objects of the Legislature.”

I think that we would not have so much difficulty in establishing the will upon the sole 'declarations of the two deceased persons in this'Case, provided such evidence is to be properly considered, were it not for the other fact which stands out so boldly in the evidence that there must have been some kind of a condition in the will of the deceased wife and in any understanding that may have existed between her and her husband as to the final disposition of the real estate. This one matter raises a reasonable doubt in the mind of the court as to what the contents of the will were. The declarations of the deceased, in whose name the real estate stood, indicate that she and her husband might have entered into a mutual compact to make what might be termed mutual wills, so as to finally dispose of the property upon the death of both of them in a way that had been agreed upon between the two parties; that is, it would seem from her declarations that there must have been some understanding and agreement between the two that the will of Mrs. Thompson ivas made in such way in favor of her husband that it left the final disposition of the real estate to be made by the will of the husband so as to cany out their mutual purpose and understanding to devise the real estate On the death of both of them in''two equal parts, one-half to her nephew and one-half to his nephew.-

If the declarations of the two parties were all to the effect that the wife only had made a will, and that it was in the safe, and that its provisions were such that the real estate was to be divided equally upon the death of both of them to the two nephews, and the diamonds were to go to her sister, and that the real estate was to go to her husband- for life, there should not be much question as to the contents of the will, if we have a right to rely upon declarations of the deceased for the purpose of establishing the contents of the will. .But it will be remembered by parties in interest that none of the declarations contained any reference or statement relative to the fact as to whether or not Mrs. Thompson’s will contained the provision that the real estate was to go to the husband either for life or in fee. It all has reference to the disposition upon the death of the husband to the two nephews, and is silent upon the other point. The real estate being in the name of the wife, it was entirely within her sole power to devise it to her husband for life, and to the nephews upon his death. But her fear, as clearly shown by her declarations that her husband would not carry out their purpose in the making of their wills, indicates that she must have devised the realty to her husband in such way as to leave the final disposition of it entirely within his power, and in reliance upon his promise, and possibly upon a will made by him, that upon his death, it would go to the two nephews. It seems that no other rational conclusion could be arrived at than this, and that she must have left it entirely within the power of her husband to carry out the mutual purpose to make final disposition of the realty to the two nephews. There would have been no other purpose or object in making the two wills, or what might be called mutual wills. They could not have made a joint will, because the wife only was possessed of the property. Walker v. Walker, 14 O. S., 157.

And, not being tenants in common, they could not have made a joint will. Betts v. Harper, 39 O. S., 639.

Tf the two had made a mutual compact to dispose of the property by separate wills, the wife devising it in fee to the husband, with'the understanding that he would devise the fee by his will upon his death, by his separate will, such compact and such wills could not be made effective by admitting the will of the wife to probate under the circumstances of this case.

Because of this doubt which arises from Mrs. Thompson’s declarations, the court is of the opinion that the declarations of both Mr. and Mrs. Thompson, under the circumstances of this case, are wholly.inadequate tó enable the court to arrive at any definite conclusion as to the exact contents of the will of the deceased wife. It would be a dangerous precedent to establish the will under the evidence offered in this ease. The court is not justified under the evidence in changing the course of descent, or in ignoring the statutory provisions relative to the making of a will, and in admitting the same to probate. It is the opinion of the court, that it would be an unsafe rule to establish a will upon the declarations of the deceased as. shown by the evidence, without other clear and convincing evidence as to the precise provisions of the will.

The application to probate the will as a spoliated .one under the statute is, therefore, overruled, and probate thereof is refused: 
      
      During illness of the probate judge.
     