Estate of Deaves

Opinion, Mr. Chief Justice Paxson: This was an attempt to probate a will alleged to have been lost during the lifetime of the testator. There is no doubt that when it is shown that the will of a testator was in existence, unrevoked, at the time of his death, and was afterwards lost or de [249] stroyed, its contents may be proved by parol, and the will, as thus reproduced, may be admitted to probate. So much was decided in Foster’s App., 87 Pa. 67. The weak spot in the appellant’s case is that there was no proof that the testator left behind him an unrevoked will, or any will whatever. On the contrary, it is an admitted fact that the will, which it was alleged the testator had executed, was lost or destroyed in his lifetime, and that its loss was known to him months before his death. There was proof of his declarations that he intended to make another will, possibly containing the same provisions, but he never did so. Knowing that he had no will, he declined or neglected to make one. From this a presumption of revocation may fairly be inferred. It would not be safe to place too much reliance upon the declarations of a testator under such circumstances. For anything we know, he may have destroyed his will because he was not satisfied with its provisions, and yet have desired to conceal the knowledge of that fact to avoid importunity. Aside from this, the evidence was very slight to establish the will. The register finds: “ The testimony'- upon this point was by no means conclusive. George Zell, the only disinterested witness who had read the will and was aware of its due execution, had reád the document but once, and had made no special effort to impress upon his memory its contents; and, while he testified that, to the best of his recollection, the provisions of the will were in substance as set forth in the petition, yet he was not positive as to any one provision of said document.” No question of the sufficiency of the proof arose in Foster’s Appeal, supra. This appears from the opinion of Mr. Justice Acknew, where he said: “ That the contents of this will are clearly and fully proved, both by testimony and by written memoranda in the testator’s own handwriting, is equally plain, and no question arises as to the number of witnesses, the contents being proved by two, as well as by the memoranda furnished by the testator himself.” The proof should be very clear to probate a lost will, especially when it is attempted to be set up in part at least by the testimony of interested witnesses. We refer to this subject merely to avoid being misunderstood, as we decide the case upon the ground first above stated. The decree is affirmed, and the appeal dismissed at the costs of the appellant.