90 P. 1105 | Or. | 1907
Opinion by
The will sought to be established and probated in' tMs proceeding was prepared by Judge Fitzhugh ,in lieu of a former will, and was executed in his office and witnessed by A. C. Marsters and H. W. Miller. It has never been seen since its execution, so far as the record discloses, and Fitzhugh, Marsters and Miller are the only persons who know anything about its deposition. There is an apparent conflict in their testimony as to whether it was left with Fitzhugh by McCoy after it was executed, or taken away by him; but we are clearly of the opinion, from a great preponderance of the evidence, that when last seen it was in the possession of M'cCoy. Fitzhugh testifies that he does not know what was done with the will; that McCoy took it with him when he left the office, and as the first will had been deposited in the bank he supposed the same was done with the second; that he, witness, kept all important papers, such as
Marsters says that the will was in Fitzhugh’s office when he left, but Miller testifies that Marsters left the office before McCoy. Miller says that he and McCoy went out of Fitzhugh’s office together, and that the will was left there, but it does not appear that his attention was particularly called to the matter or that anything was said about the custody of the paper, and he does not testify that it was left with Fitzhugh for safe-keeping. His testimony is simply his recollection of a matter occurring some four years prior to the time his testimony was given, without there being anything in the transaction to call his attention to that particular feature. Fitzhugh, on the other hand, is quite positive that‘the will was not left with him, but that McCoy took it away, and in this he is corroborated by the fact that it cannot be found among his papers or in the place where it would probably be if in his possession, and by the further fact that McCoy did not leave the first will with him, although it was prepared by him and executed in his office, but deposited it in the bank as he would be likely to do with the second.
Now, there is evidence on behalf of proponent of declarations of the testator made to the petitioner and her husband and other witnesses, after the execution of the will, which indicates an intention to adhere to it, and which tends to show that he did not mean to revoke it; but the force of this evidence is overcome by proof of positive declarations by the testator made to his wife and other members of his family that because of some real or fancied grievance against petitioner’s husband he had, .in fact, destroyed and revoked the will, and intended that his heirs should share and share alike in his estate. It is not necessary to state the evidence in detail; but it is sufficient to say that in our opinion the presumption, which the law attaches to the fact that the will cannot be found, has not been overcome by proponent.
The decree of the court below is therefore affirmed.
Affirmed.