Manning's Estate

Opinion by Henderson, J., The appellant contends that the effect of the destruction by burning of the will of Mrs. Manning executed in March, 1909, was ipso facto a restoration of the will made by her in November, 1905. This is a different position apparently from that taken in the court below as indicated by the evidence introduced and the questions discussed by the learned judge of the orphans’ court. Importance was there attached to the fact alleged that the testator had republished the will of 1905 by delivering it to her husband and declaring that it was her will and that she wished him to take care of it and keep it and not let anybody have it. As this declaration was not made in the presence of the number of witnesses required to establish an original will and was made before the destruction of the later will the court held it to be insufficient to amount to a republication of the first will. This conclusion is in harmony with the decision in Forquer’s Estate, 216 Pa. 331, and Kerchner’s Estate, 41 Pa. Superior Ct. 112. In the latter case there were two wills, the second of which was destroyed by burning, and one of the questions was whether a will which had been revoked by the execution of a subsequent will can be republished by parol and the probate of the first will was sustained on the ground that it had been revived by parol republication after the destruction of the later will, the testator having declared it to be her intention to revive and continue the provisions of the earlier will. In Forquer’s Estate the question was whether the will was absolute or contingent. There was evidence of republication after the contingency had ceased to exist and the opinion of the court below on which the case was affirmed held among other things that a will which had been revoked or superseded by some subsequent will or circumstances may be republished and such republication may be by parol. If we consider the appellant’s position in regard to the conclusiveness of the destruction of the second will, the fact is not to be overlooked that the first will only becomes effective when it [611] has been preserved by the testator, the unexplained circumstances permitting the legal conclusion that it was the testator’s intention by the destruction of the later will to give effect to the prior one, but the uncontradicted evidence in this case is that the testator said in connection with the destruction of the will of 1909, though at a later time on the same day, that she intended to make a new will. And this is inconsistent with the theory of a revival of the older will. The statement was made so soon after the destruction of the will of 1909 and to the person who had burned it by direction of the decedent that the declaration may be reasonably related to the act of destruction and expressive of Mrs. Manning’s intention that a will yet to be made should dispose of her estate. Discredit was also cast on the testimony of the appellant as to the circumstances under which he came into possession of the will by his acts and declarations tending to show that he was not aware of the existence of the will of 1905 at the time his wife died although according to his own story it was in his possession at that time. If he did not acquire possession of it at the time and in the manner indicated there is a place for the conclusion that he got it under circumstances which repel the presumption that it was retained and preserved by the testator. It is quite conceivable that she may have forgotten the execution of a will made several years before or that she regarded it as having been annulled by the execution of a subsequent will and therefore of no effect or consequence; hence, the importance of evidence that she kept the will. The decree is affirmed.