In Re Will of Wellborn

IIoKE, J., after stating the case: Our statute on wills, Re-visal, sec. 3115, and various decisions here and elsewhere dealing with the subject, are in recognition and approval of the principle that there may be a' partial revocation by canceling, tearing, etc., and as to material portions of a will, and if the words “Canceled by Isaac 0. Wellborn,” restricted as they are physically to certain definite clauses of the paper-writing, were all that appeared in the case, it may be that the charge of his Honor as to the burden of proof could be sustained. Wikoff Appeal, 15 Pa. St., 281; Malone v. Hobbs, 40 Va., 346; Pritch-ard on Wills, sec. 270. But the facts suggested do not present the entire case. All the evidence tends to show that the paper-writing can only be upheld, if at all, as a holograph will, and the name of the alleged testator only appearing at the bottom, except in connection with the words. “Canceled by” in the two places designated, this subscribed signature is essential to its existence as a will (Rev., sec. 3127), and, in addition to the two entries on the face of the will as described, and in the handwriting of Isaac C. Wellborn, the paper-writing when presented for probate and when offered in evidence showed that his signature subscribed to the instrument was torn entirely through, dividing all the letters of the name as near in half as it could *639 well be done, and extending an inch and a quarter or a balf into tbe last clause of the will, and there was evidence, further, tending to show that the instrument was in like condition when first found among the papers of the deceased. If this last fact should be accepted by the jury, it would, in connection with the other facts admitted or clearly established, raise a presumption that the tear in question was done with intent to revoke the will. True, the authorities agree in the position that, in order to revoke a will by canceling or tearing, the physical act -interfering with some material substance of the will and the intent to revoke must concur, and that the act of marking the will “Canceled” on its'face, or of tearing some material part of the same, is an equivocal act, open to explanation by relevant testimony, and that, in the first instance, the burden is on him who alleges a revocation; but it is also very generally held, and certainly so in this jurisdiction, that when an instrument purporting to be a will when first found among the valuable papers of the testator, having previously been in his custody, appears clearly to have been canceled or torn in a material portion which is essential to its entire existence as a. will, a presumption arises that this was done by the testator himself, and with intent to revoke, and the burden is on the propounder to explain the act and show that, notwithstanding appearances, the instrument was intended to remain as the will of the.alleged testator. In re Shelton’s Will, 143 N. C., 218; Cutler v. Cutler, 130 N. C., 1; Bethel v. Moore, 19 N. C., 311; In re Brown’s Will, 40 Ky., 56; Pritchard on Wills, secs. 261, 211; Theobald on Wills, p. 45; 30 A. and E. Enc. (2 Ed.), 635 cc; 14 Enc. Evidence, title Wills, p. 445. In Cutler’s case, supra, it was held: “Where a will had been in testator’s possession, and is offered for probate with name of testator torn off or eaten off by vermin, the burden of showing that it had not been revoked is on the propounder”; and, on the burden of proof ¡.Chief Justice Burches, delivering the opinion, said: “But the court instructed the jury tha,t, cIf the jury should find that the will was properly executed by Nathan C. Cutler, then the burden of proof shifted to the caveators to *640 show by the greater weight of the evidence that the will had been revoked. This was error. If there had been no evidence of erasure or destruction on the script itself — if the paper had been perfect — this charge would have been correct. But where the name of the testator was gone, torn off by the testator, as the caveator alleges, or destroyed by moths, as the propounder contends, the propounder did not establish it as the will of Nathan C. Cutler by proving that it was originally executed by him. This would not have been so in an action on a note or' a bond, and is not in this case. And the burden of proof did not change to the caveators at this stage, and place the burden upon them to show how the testator’s name came to be off the paper. The will had been in the possession of Cutler; when produced, it had upon it these marks of mutilation, the testator’s name being gone. It devolved upon the propounders to account for this, and it was not Cutler’s will until they did so to the satisfaction of the jury. When the will was produced' without the name of Nathan C. Cutler, this was prima, facie evidence of a revocation, and the law presumed that i't had been revoked. It is true this presumption might be repelled, but the burden of doing so was on the propounder. If this was not so, it would be to require the caveator'to rebut the presumption that was in his favor. Bethell v. Moore, 19 N. C., 311; Steele v. Price, 44 Ky., 58; Pritchard on Wills, sec. 267, 269; Underhill on Wills, sec. 225; Theo. Law of Wills, p. 45. There was error in this instruction.” Applying the principle: If, when the will was produced from the valuable effects of the testator, the same having previously been in his custody, it had the name of the deceased, subscribed to the instrument, torn entirely through, as it now appears^ and there was also on the face of the will the words, in two prominent and material portions of the same, “Canceled by Isaac C. Wellborn,” as described, ■ this would raise a presumption calling for explanation by the propounder, and the burden should be placed on him to show that, notwithstanding appearances, the will was the last will and testament of the alleged testator. *641 Under our decisions tbe evidence offered as to the declarations of Isaac C. Wellborn, deceased, where relevant as tending to show the existence or nonexistence of his will, were admissible in evidence and properly received. In re Shelton, supra, and authorities cited; Reel v. R.eel, 8 N. C., 248. For the error indicated, the caveators’are entitled to have the issue tried by another jury, and it is so ordered. New trial.