Hewett v. . Murray

Seawell, J. The petitioner’s counsel insist that there can be no non-suit in the present case, since they regard it as a proceeding to probate a will in solemn form and, therefore, a proceeding in rem. But there cannot be a proceeding in rem unless there is first a res. Usually the proponent of a purported will is able to offer the paper writing in its physical integrity. If lost or destroyed, he makes proferí in a more intangible way, through satisfactory proof that it once existed and was lost or destroyed under circumstances that would defeat an inference of cancellation by the testator. If we concede that most of the preliminary steps toward the establishment and probate of a destroyed holographic will might he taken with the aid of one witness, as in the case of a will with witnesses —In re Will of Martha Hedgepeth, 150 N. C., 245, 63 S. E., 1025-in both cases it is necessary to show that the document was such as might be probated as a will. What difficulties petitioner might further encounter in an attempt to proceed with the probate in solemn form in the absence of the oath of the three witnesses prescribed by statute, that the will is entirely in the handwriting of the testator, we need not now inquire. As we have seen, the evidence does not go so far as to show from even one witness that any part of the purported will was in the handwriting *572 of Murray, except, possibly, tlie signature. Tbis is, of course, insufficient. Tbe petitioner contends tbat be should at least recover of respondents tbe value of tbe estate withheld from bim — an estate to wbicb be bas not advanced any theory of legal right except through tbe alleged lost or destroyed will. Such a remedy would, of course, be inappropriate to tbe declaration or petition, if it bad any foundation. Tbe petitioner bas sustained no wrong at tbe bands of those who inherit tbe property failing testamentary disposition and tbe proceeding discloses no justiciable complaint against them in connection with such inheritance. Tbe judgment is Affirmed.