
    In the Matter of the Will of Maria Soule, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Will—Probate oe lost will.
    In a proceeding to prove an alleged lost will, it appeared that shortly after her re-marriage the decedent duly made a will to take the place of one she believed to have been wrongfully abstracted from her keeping, and gave it to the person who drew it for safe keeping; that it was obtained from such person by her husband two weeks before her death and was in existence two days before her death. Held, that upon these facts, in the absence of evidence that the will was destroyed by the testatrix or that she had at any time an intention to revoke, the presumption of its existence was not necessarily overcome, but that such question should be submitted to a jury to determine.
    Appeal by the proponents from a decree of the surrogate of Brie county, denying probate to an alleged lost or destroyed will
    
      Tichnor & Pierce, for app’lts; Thrasher & Leonard, for resp’t.
   Dwight, P. J.

The execution of the alleged will is found by the surrogate; the question is of its revocation. In or about 1883 the testatrix, being then a widow and without descendants, executed her will, drawn by a neighbor on a blank of short form, by which she made a niece and the husband of the latter sole legatees and devisees of her little property, which amounted at the time of her death to about $1,800. The next year, 1884, she married William Soule, the contestant, and two years after that, in 1886, she sent for the same neighbor and requested him to draw another will precisely like the first, which was lost. She told him that will had been taken away by somebody in the family, and it must have been either her husband or a young relative whom she named The scrivener, Mr..Clark, accordingly procured a similar blank and drew a second will as nearly as possible a counterpart of the first, which the testatrix executed with all due formality, and gave it to Mr. Clark to keep for her, saying that she had had bad luck with the other will and he could keep it safer than she could. Three years afterwards, and two weeks before the testatrix died, th: custodian was induced, by the representations of Soule that his wife wanted the will, to send it to her house. Whether at that time it fell into the hands of the testatrix or of her husband does not appear.

There is evidence tending to show that it was among papers belonging to her, and to which both she and her husband had access, two days before she died. There is no evidence that she ever destroyed it, or consented to its destruction, or revoked it in any manner, or intended to revoke it. There is no evidence even that it was withdrawn from the depository by her direction. The testimony of Mr. Clark and of the contestant, as to the statement of the latter to the former at the time he was induced to give up the will, was properly received in evidence, because Mr. Clark had already testified in behalf of the proponents to the effect and purport of the conversation to a certain extent; this gave to the contestant the. right to give evidence of the whole of the conversation ; but it was a mere declaration and was not evidence of the fact stated.

We have, then, very briefly, the will in question duly executed, to take the place of one which the testatrix believed had b'een wrongfully abstracted from her keeping by an interested party; its deposit with Mr. Clark as custodian, expressly to prevent its sharing the same fate; its withdrawal from such custody without, so far as the evidence goes, her direction or authority, only two weeks before her death; its continued existence down to the second day before her death, and the fact that it was not found after her death by those interested in its production, and that it was not produced by those interested in its suppression. These facts, in the absence of evidence that the will was destroyed by the testatrix, or that she had at any time the intention to revoke it, do not, we think, necessarily rebut the presumption that the will continued to be in existence at the time of her death. That such a presumption arose from the undisputed facts of this case is in accordance with the elementary rule that a previously existing state of things will be presumed to continue. Greenl. Ev., §41; Beckwith, v. Whalen, 65 N. Y., 322. That presumption is, of course, rebuttable, and the fact that the will was not found or produced after the death of the testatrix is undoubtedly a circumstance tending to rebut it, the force of which is dependent upon all the other circumstances of the case. We are not disposed to indicate our opinion of the probative force of those circumstances in such manner as to prejudice the future disposition of the case, but we are of opinion that the case is a proper one to be submitted to a jury to pass upon the following questions:

1. Did the deceased, Maria Soule, in or about the month of November, 1886, make, publish • and declare, in due form of law to pass real and personal estate, an instrument in writing as and for her last will and testament ?

2 Did she by such instrument make valid testamentary disposition of all her real and personal property by gift and devise to the proponents Emily Beaver and Henry Beaver equally, share and share alike, or, in case of the death of either of them before that of the testatrix, then to the survivor of them; and did she by such last will and testament make, constitute and appoint the said Henry Beaver sole executor thereof ?

3. Was such last will and testament in existence at the time of the death of the testatrix unless the same had been fraudulently destroyed in her lifetime.

The decree should be reversed on a question of fact, and an order entered directing a trial by jury of the above specified material questions of fact arising upon the issues between the parties ; such trial to be had in the circuit court of Erie county.

So ordered, with costs of this appeal to abide the final award of costs.

The order to be settled by the presiding justice.

Macomber and Lewis, JJ., concur.  