Wilbourn v. Shell

Cooper, J.,

delivered the opinion of the court.

The questions upon the decision of which this clause must turn are three: First, Was the paper presented by Wilbourn to Hobgood, in the year 1877, for the purpose of having a copy thereof made, his holographic will? Second, Are the contents of said instrument sufficiently proved to entitle it to probate ? Third, If this paper was the will of Wilbourn, and its contents have been sufficiently proved, was it subsequently destroyed by him, animo revocandi absolutely, or was it a case of conditional relative revocation? We shall be aided in a solution of the first question by considering first the inquiry secondly above noted ; for, if it be true that the contents of the paper have been sufficiently proved, we are at libertj'- to consider its provisions, for the purpose of discovering the intentions of the testator in executing the instrument, and also in his subsequent execution of the second writing and his destruction of the first.

In determining this question we experience little difficulty, for the witness who testified as to the contents of the instrument is wholly disinterested, and not only had the best means of knowing the facts to which he testified, but is supported by the undisputed fact that the decedent attempted to execute as his will a paper which he at least considered as containing the identical provisions found in the first. The decedent brought to the witness Hobgood the original, for the purpose of getting him to make a legible and correctly spelled copy, *208 and immediately attempted to execute the copy so made as his will, and as a copy of the original. This act of the decedent, if not a declaration by him of the fact that the one paper was a copy of the other, is strongly corroborative of the testimony of the witness; for we cannot presume that a person intent on the execution of so important an instrument would, with both papers in his hands, neglect to inform himself of the correctness of the one which he expected should carry into effect his testamentary wishes as expressed in the other. It would, in most cases, be impossible to prove the contents of lost instruments, if the evidence in this case should be held insufficient. The identity of the copy is fixed beyond dispute; the circumstances under which it was written suggest that care was taken in its preparation; it was immediately acted upon by the person principally interested as a correct copy; and its accuracy is attested by the testimony of a wholly disinterested and intelligent witness. The evidence leaves in our minds no doubt that the original was written by the testator (as he declared to the witness it was), that it was subscribed by him, and that the copy made by the witness was a correct copy of the same.

Was this original paper the will of the said Wilbourn? That it was, we think is clearly shown by the facts that the paper was declared by the testator, in his conversation with the witness, to be his will; that it was in form a completed instrument, evidencing a determinate, definite purpose on the part of the. maker, and not in form preliminary or provisional; that it was preserved by the writer from November, 1876, to some time in the autumn of 1877 (a care which would hardly be given to a mere memorandum of such simple provisions as are noted in it) ; and, finally, that it contained precisely the disposition of his estate which the testator attempted to make by his execution of. the copy written by the witness Hobgood.

Was this will revoked by the testator? The legal presumption is, that a will which was in the possession of the testator, but which cannot be found after his death, was destroyed by him animo revocandi. 1 Redfield on Wills, 828 ; 1 Jarman on Wills, 270, and authorities cited in note 13. But the material inquiry in all cases is, whether the destruc *209 tion of the will was animo revocandi, and to determine this it is necessary to consider the circumstances under which and the purposes and reasons for which it was destroyed; and where from all the circumstances in evidence it appears that the destruction or revocation was connected with, or because of, the execution of another will, and that the testator meant the revocation of the one to depend upon the validity of the other, then if the latter will is inoperative, from defect of attestation or other cause, the revocation fails also, and the original will remains in force. Hairston v. Hairston, 30 Miss. 276 ; James v. Shrimpton, L. R. 1 P. D. 431; Barksdale v. Barksdale, 12 Leigh, 535 ; Onions v. Tyrer, 1 P. Wms. 343; 1 Jarman on Wills, 294.

From a consideration of all the facts in evidence, we are satisfied that the testator destroyed his holographic will, under the belief that the copy thereof executed by him was a valid will, and not with the intention of dying intestate as to his lands. It is inconceivable that one would preserve for a year an instrument as his will, and then procure a copy of it to be made, and execute the copy with the intention of making that his will, and then destroy the original and retain carefully the copy, for the purpose and with the intention of dying intestate. If the execution of the copy had been attested by three instead of two witnesses, it would have been a valid will. Being inefficient because of the want of attestation, a revocation of the prior will, made by the testator under a belief in its validity, is conditional and not absolute, and the condition having failed, the original is in law still the existing will of the testator, and is entitled to probate.

The decree is reversed and cause remanded, with instructions to the Chancery Court of Panola County to admit to probate the copy as proved.

Decree accordingly.