Rhodes v. Vinson

Spence,. J., delivered the opinion of this court. After a careful examination of the authorities, bearing upon the questions of law, presented for our adjudication in this case, we are satisfied that the court correctly announce the law, both upon principle and authority, in the case of Idley vs. Bowen, 11 Wendell, 235. The doctrine in the case of Idley vs. Bowen is as follows: “The destruction of the instrument, by the direction and in the presence of the testator, or even by his own hand, will not amount to a revocation in judgment of law, unless he had at that time sufficient capacity to understand the nature and effect of the act, and performed it, or directed it to be performed free [171] ly and voluntarily, with the intent to effect a revocation; and although the instrument is not in being, its contents having been satisfactorily shown, there is no difficulty in establishing it as a will, if it is shown to have been improperly destroyed, vide Trevelyan vs. Trevelyan, where the same doctrine is held, 1 Phillimore 149. We shall not slop to inquire as to proof of the capacity of the testator, at the time of the execution of the will, or of its legal attestation, but.concede that both of these requisitions were legally gratified. We are first to inquire, whether the contents of the paper, which was destroyed are satisfactorily proved. The policy of the law has thrown around last wills and testaments, as many, if not more, shields to protect them from frauds, imposition and undue influence, than any ¡nodo of conveyance known to the law. Gan there be a doubt, that in cases like the present where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive and satisfactory proof? We think not. We think this very case furnishes a clear illustration of the soundness of that policy, which requires that the proof of the entire contents should be conclusive and satisfactory; and the authorities on this question all hold this doctrine. Is such the proof in this case? There are some four or five witnesses, no two of whom agree as to the entire contents of the will, all or nearly all affirm their recollection to be indistinct and imperfect. This fact, coupled with the vagueness, uncertainty and discrepancy of the proof of the contents of the instrument, seems more to confuse than to convince the mind and satisfy the judgment what the contents of the will were. This court has no standard, or scale, by which they can measure and determine the weight of the testimony of the different witnesses, in order that any one of them should preponderate over all the rest; which would be indispensible, where they all conflict, in order to arrive at a satisfactory conclusion, as to what the contents of the instrument were. [172] We forbear to express any opinion upon the question of capacity, at the time of the destruction of the paper, for the reason that it is one of fact, and would not change the decision in the case. The decree of the orphans court is reversed with costs. DECREE REVERSED WITH COSTS.