273 Mass. 53 | Mass. | 1930
The Probate Court of Worcester County entered a decree that an instrument “now lost, and exe
The judge reported “the material facts found by him.” G. L. c. 215, § 11. He found “that the deceased, Caroline M. Snow, on September 1, 1926, executed an instrument as her last will substantially in the language in which it is allowed by this decree. The testatrix went with her husband to the office of D. Gage Hunt in Lynn, Massachusetts. Mr. Hunt was a justice of the peace and insurance agent who had had some experience in making out legal papers. He talked with the parties. Mrs. Snow stated that she wished to give all her property to her daughter because it had come from her first husband, the daughter’s father. . . . Mrs. Snow took the instrument with her from Mr. Hunt’s office. Later, when Mrs. Snow was living with her daughter Myrtle and the daughter’s husband, Peter A. Coghlin, . . . she gave the instrument to one of them for safe-keeping. The will was either lost or mislaid and has never been found. At some time Mrs. Snow wished to see the will and search was then made for it, but it could not be found. Mrs. Coghlin thought she had given it to her husband to take to his office to put in his safe, but he did not remember this circumstance. Mrs. Snow stated that it would not make any difference anyway if the will was lost, because the daughter was her only heir. ’ ’ The judge further found ‘‘ that the testatrix executed the instrument dated September 1, 1926, which is allowed by the decree now appealed from, in the presence of three attesting witnesses and that the attesting witnesses signed it in the presence of the testatrix, and that she was at that time of full age and sound mind; that she was not under the influence or domination of anyone and that the instrument represented her wishes . . . that this instrument was never destroyed by the
The Probate Court “has full authority in proper cases to allow the proof of a lost will by any competent evidence of its contents.” Thayer v. Kitchen, 200 Mass. 382, 385. “Where a will is proved by oral testimony, it cannot be expected that any witness can testify to the exact words used; but what is required is the substance of its material provisions, their true tenor and effect.” Tarbell v. Forbes, 177 Mass. 238, 243. Such oral evidence must be “strong, positive and free from doubt.” Newell v. Homer, 120 Mass. 277, 280. See also Davis v. Sigourney, 8 Met. 487, 489, 490; Giles v. Giles, 204 Mass. 383, 387. Moreover, “where a will once known to exist cannot be found after the death of the testator, there is a presumption that it was destroyed by the maker with an intent to revoke it.” Smith v. Smith, 244 Mass. 320, 321.
In the absence of the evidence we cannot say that it did not go far enough to warrant the judge’s subsidiary findings and his conclusions that the deceased, being of testamentary capacity and not unduly influenced, duly “executed an instrument as her last will substantially in the language in which it is allowed by this decree,” and that the presumption of revocation was rebutted. ' These conclusions do not purport to be based solely upon the subsidiary findings and are not incompatible with anything therein. See Briggs v. Sanford, 219 Mass. 572, 573. As the record does not show that they are plainly wrong they must stand. Smith v. Smith, 244 Mass. 320.
Decree affirmed.
