Foster's Appeal.

1. Where it is shown that the will of a testator was in existence unrevoked at the time of his death and was afterwards lost or destroyed, its contents may be proved by parol and the will as thus reproduced admitted to probate. 2. Where it is shown that the testator always had his will in his custody, and after his death it could not be found, the presumption is that he destroyed it animo revocandi; but such presumption may be removed by sufficient

evidence.

3. Whenever a dispute arises upon a matter of fact before a Register's Court, the right to an issue is undoubted, but the demand therefor must be made in due time and where it was not made until after a report by an examiner, a hearing by the court and a motion for a re-argument, it was not error for the court to refuse an issue.

April 5th 1878. Before AGNEW, C. J., SHARSWOOD, MERCUR GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Appeal from the decree of the Orphans' Court of Wayne county: Of January Term 1878, No. 78.

The facts were as follows: Isaac P. Foster died on November 18th 1876. On December 7th 1876, the two sons of decedent, William H. and Isaac N. Foster, and his attorney, Charles S. Minor, appeared before the register of wills of Wayne county, and alleging that the will of said decedent had been lost, exhibited a paper which had been reproduced from notes of instruction given to said Minor by decedent, from which said lost will had been drawn, and asked that said paper as thus reproduced should be admitted to probate. The register admitted the paper to probate as the will of said decedent, whereupon several of his children appealed to the Orphans' Court. An examiner was appointed by said court, before whom Minor testified that he had drawn six wills for decedent, dated respectively in 1861, 1862, 1865, 1867, 1870 and 1875; that decedent came to him with his first will in 1860, and that whenever a new will was drawn the old one was always left with witness and was never cancelled until after the new one was executed; that decedent had frequently stated to witness that it was his wish to make a disposition of his property by will for the reason that two of his sons had assisted him in acquiring it; that the reproduced will was made up from memoranda in the handwriting of the decedent, and from which his last will had been drawn.

William H. Foster testified that he had a talk with his father about the existence of a will during the last week of his life, in which he expressed a desire to have a change made therein concerning the substitution of money for certain bonds which testator had given to his daughters; that in another conversation, in speaking to witness about his will his father had said: "Mr. Minor knows all about it; you will find everything pertaining to my estate in the lower drawer of the secretary in my bed-room; I wish these papers to pass into your hands." Witness had known previously to

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that time where his father had kept his last will; had shown him where he kept it; was in the lower secretary drawer at the right hand end; when his father showed it to witness he took out a large envelope and said it contained his last will; it was endorsed "The last will and testament of Isaac P. Foster," in the handwriting of Mr. Minor; he replaced the envelope in the drawer; always kept that drawer locked, but the upper one was left unlocked, and by drawing it out the contents of the lower drawer could be removed; after his father's death a careful search was made through the drawer and in every conceivable place where the will would likely have been put, but it could not be found.

Isaac N. Foster testified: "I saw father on Wednesday preceding his death, about noon. I took a seat near his bed and he commenced talking about his business matters. He began the conversation in this way: I don't know as you know that I have paid that $1200 note. You know what note I mean.' I answered I did, and mentioned the note. 'You mean the Isaac Ward note.' Father said, As my will is, I don't know but what William can lay claim to that note. I don't want him to do it, and don't think he will.' I replied to him that we had better see William. He then said that he wanted to see Mr. Minor, William and myself together. Mr. Minor knows all about my matters and wishes, and in my will I have left him sole arbitrator of all matters of differences.' Father was at this time suffering a good deal of pain; he was physically weak; his mind was active and good, no doubt about it; he was undressed and in bed. I was there in the neighborhood of an hour.

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"Previous to this, had learned from father that he had made a will; he was in a sort of a stupor from Thursday until his death on the Saturday following."

Other witnesses testified to the feeble condition of the decedent during the week previous to his death, and to his inability to leave the room. The subscribing witnesses also testified to the execution of the will.

The case was argued before the Orphans' Court and subsequently a petition for a re-argument was granted. Accompanying the petition was a request for a præcipe for an issue to the Cominon Pleas to try the disputed facts.

In an opinion the court, Waller, P. J., inter alia, said:—

"The first inquiry arising in the case is, whether, under the evidence reported by the examiner, any disputed facts material to the issue are disclosed, which render it necessary to certify the case to the Common Pleas to obtain the finding of a jury as auxiliary to the court in passing upon the questions presented by the papers and argument. The granting of an issue of fact is not a matter of right, but rests in the sound discretion of the court, and, unless the evidence is contradictory upon material points, it is clearly the duty of the court, taking into consideration the delay and expense attending

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it, to refuse such issue: Commonwealth v. Bunn, 21 P. F. Smith 412; Graham's Appeal, 11 Id. 45, and Wikoff's Appeal, 3 Harris 281. There are disclosed by the evidence some contradictions of witnesses, but it does not seem to us that they are upon material points, but are different recollections of conversations which were had after the death of decedent and after probate of the paper, rather than facts which would materially affect the real questions presented in the case. We therefore conclude that a reference to a jury is unnecessary. The fact, that Isaac P. Foster made a will on or about the 5th of June 1875, which was written by C. S. Minor, Esq., under the instructions of the testator, mainly in writing, is established and not controverted by the evidence. Decedent died at his own house, surrounded by his family, on the 18th day of November 1876, after an illness of less than a week. The will had been delivered to or left with the testator by Mr. Minor, at the time of his execution of it. After his death diligent search for the will was made by various members of his family, but no will was found. These facts raise a presumption, that the testator destroyed his will animo revocandi: Greenl. on Evidence 688 and note; I Redfield on Wills 331; Jarman on Wills 231, and 2 American Leading Cases 510, with authorities there cited. This cast the burden upon the proponents of rebutting the presumption by sufficient evidence. This presumption may be rebutted by such evidence as produces a moral conviction to the contrary: Davis v. Davis, 2 Add. 226; Minkler v. Minkler, 14 Vt. 125, and 1 Redfield on Wills 329.

"Proponents rely chiefly upon the acts and declarations of the testator for several years preceding and down to within a few hours of his death to repel this presumption. Acts and declarations of a testator are admissible to repel the presumption that he destroyed his will animo revocandi: Jones v. Murphy, 8 W. & S. 275; Youndt v. Youndt, 3 Grant 140; Havard v. Davis, 2 Binn. 406; Davis v. Davis, supra, and Minkler v. Minkler, supra. It is well settled that declarations of a testator as to the contents of his will, or the testamentary disposition of his property and estate, are of little weight as against a will proven or to establish the contents of a lost will. Especially where, as is generally the case, the declarations are made to importuning or complaining relatives. But these are to to be distinguished, we think, from the acts and declarations of a testator tending to show and showing his conviction. and understanding, that he has a will in existence at the time of his decease. If the will was destroyed or lost without the agency of the testator, it does not cease to be his will, provided its contents can be sufficiently proven.

"It appears from the evidence, that for many years Isaac P. Foster had been careful not to be without a will. That he made some seven wills, the last of which was in June 1875, and whenever he

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desired a new will drawn he produced the preceding one, and directed the particular changes he desired. That he assigned to Mr. Minor, his counsel, at times of making his wills as a reason for having a will, that an equal distribution among his children would be a most unjust thing, as William and Isaac had helped acquire the property, &c., and that the joint earnings remained in his hands,

and that he held it in trust for them.'

"The agreement of several of the heirs, after their father's death, in writing, requesting Mr. Minor to reproduce the will, is based upon the understanding that testator had a will at the time of his death, and that the same could not be found and is so expressed. That the death of Horace Weston, a son-in-law, rendered a change in his will necessary, and as in former cases, he produced the will of 1870, and instructed Mr. Minor to draw a new one, making such changes as the altered circumstances of his family appeared to him to require. That he made provisions in his will for his granddaughter, Harriet J. Weston, who for some six or seven years had waited upon and taken care of himself and an infirm and enfeebled grandmother, and without such will this granddaughter would have no portion of his estate. That he said to his son-in-law, Luther M. Chase, in September 1875, in speaking of what he had theretofore done for Mrs. Chase, his daughter, that he didn't know as he could do more for 'the girls' than he had already named or provided to be done in his will. That in the early summer of 1876, he spoke to Mr. Minor of a change he wished to make in his will to provide for payment by his executors of moneys instead of some railroad bonds he had left them in his will. That October 12th 1876, a month or so before his death, he spoke to Mr. Minor on the same subject, and when advised that a codicil would be sufficieut for that, said to him 'that when he felt able he would call and have it done,' and if he should die without doing it, he instructed Mr. Minor to see that his executors did as he desired in that matter. That he, at different times, spoke to William H. Foster, his executor, upon the same subject, and enjoined it upon him to carry out his wishes in that particular.

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"That he spoke to his daughter, Mrs. Ward, about a fortnight before his death, saying that he didn't know as he had done right in sending money to Mrs. West, another daughter, for the education of her child; he thought he ought to have left it for her under his will, and that the amount, $200, was to be taken out of her portion in his will. That he spoke to William and Isaac as to his son James and the provision of his will. Told Isaac that James wanted him to release liens he had on James's property in Ohio, but he didn't want to do it, as it would oblige him to re-write his will. That he expressed a desire to have Mr. Minor, William and Isaac come to his room with reference to the change he had spoken of with reference to the railroad bonds to the girls. This was the

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last day he was conscious. That the same day he talked with Isaac about his will; said to him that he didn't know but William might, under his will, lay claim to a note of $1200 against Isaac Ward, but he didn't want him to collect it, but hand it over to Mrs. Ward. That the same day, and after the conversation with Isaac, he said to William that it was no matter about having Mr. Minor come up, he had seen Isaac and it was all right; Mr. Minor understood all about it. He told Isaac that he had made Mr. Minor sole arbitrator in his will to settle any disputes. After talking with William about his will, the last day that he was conscious, he told him that he would find all the papers relating to his estate in the lower secretary drawer, and wished them to come into his hands as one of his executors. It is also in evidence that from Monday morning until he died, on Saturday, he was not able to leave his bed without help. That he informed William and Isaac that he would leave James's matters to them as his executors, to dispose of as they thought best.

"Contestants argue these and other circumstances brought out in the evidence, are not sufficient to rebut the presumption of a destruction. of the will by the testator animo revocandi. That by reason of advanced years and failing memory he might have destroyed his will and forgotten all about it, and in his senility have talked of it as an existing instrument. In support of this theory, they have shown a single instance of having forgotten that Josiah, his son, had taken some bonds to the bank for safe-keeping. They furnish no positive or circumstantial evidence of the destruction of the will or of its cancellation in any of the modes prescribed by Act of Assembly, by the testator. It appears from the evidence and is uncontradicted that testator retained his mental faculties up to Thursday morning before his death, and it is also made apparent from his conversations with his children and the attention he gave to matters relating to his estate to the Thursday morning before he died. These facts and circumstances lead us to conclude the testator died with the full conviction and belief that he had a will that would be operative at his death, and render it highly improbable that he should have destroyed it. We therefore come to the conclusion that the presumption of destruction of the will by the testator, animo revocandi, is repelled by competent and sufficient evidence.

"The next question presenting itself is, can the contents of a lost or missing will be admitted to probate? This question has never, so far as our researches go, been settled by any court in Pennsyl

vania.

"It is, however, a well-settled rule of law in this state that lost bonds, deeds, depositories, records, &c., may be proven, and when the loss is properly established, the contents of the lost instrument may be given in evidence. It has also been held here that the con