Appeal by Stuart N. West from a judgment dismissing a proceeding instituted by him to revoke the probate of a will. The contest was dismissed on the ground *564 that West was not an interested person entitled to contest the will under Probate Code, section 380.
West, not an heir at law of decedent, bases his right to contest the will on the ground he is the principal beneficiary under a prior will and codicil, executed by Pearl P. Arbuckle, decedent, which will, together with the codicil, was destroyed. in 1943 or 1944, during decedent’s lifetime, without her knowledge or consent.
Mrs. Arbuckle died testate February 26, 1947, in Los Angeles. On April 17, 1947, her purported last will and testament, dated November 19, 1939, was admitted to probate. By this will all of decedent’s property was bequeathed to her niece Katherine Elizabeth Stainback, who was also named executrix. On August 5, 1947, West filed a petition seeking revocation of the probate of the 1939 will on the grounds of want of testamentary capacity and undue influence. Respondents filed a general denial and as a special defense alleged that West was not an “interested person” entitled to contest the will.
By stipulation of counsel the latter issue was presented to the court for determination on the opening statement of plaintiff’s attorney prior to trial of the issues of fact relating to the validity of the asserted will.
(Cf. Estate of Plant,
The opening statement revealed that appellant was prepared to prove the following facts:
Appellant and decedent’s daughter Edith were married in 1916. Edith died in 1917. Decedent met a Mr. Bell in 1920 or 1921 in connection with a real estate transaction. Thereafter a relationship of great confidence developed between them which continued for almost 20 years. Bell supervised and managed decedent’s real estate interests, and in the latter part of 1934 was given a general power of attorney by decedent to handle her business affairs and property. In 1933 decedent decided to make a will and went to Bell for assistance. She explained the terms of the proposed will to him and he drafted *565 it for her. Decedent approved it and executed it in his office in the presence of two witnesses who signed it in her presence. Bell was named as executor of the will. It provided that after paying the debts of the estate he was to liquidate the real estate interests and divide the proceeds four-fifths to appellant and one-fifth to decedent’s half-sister Virginia Stainback. Only an original of the will was made which decedent at the time of execution handed to Bell for safekeeping. About a year later decedent made an holographic codicil which modified the 1933 will only by naming two beneficiaries as legatees of $500 each. On its execution decedent delivered the codicil to Bell for safekeeping. Bell placed the will and the codicil in his safe deposit box.
Beginning in 1934 decedent gradually deteriorated mentally. In 1938 Bell arranged for a companion nurse for her. In May of that year the companion nurse sent for Katherine Stainback, urging her to come to California to look after decedent. Katherine came to California and later was joined by her mother and father. On November 19, 1939, decedent executed the will in contest. At that time she was between 73 and 83 years of age. Soon after the execution of this will the Stainbacks notified Bell his services as decedent’s manager were no longer required. In November, 1942, decedent was placed in a private mental sanitarium by the Stainbacks where she remained until her death.
The 1933 will and the codicil thereto remained in Bell’s safe deposit box until about 1940, when he transferred them to a file in his office. In 1943 or 1944, and after decedent had been placed in the mental sanitarium and at a time when she was of unsound mind, Bell, in accordance with his practice of periodically cleaning out his business files and assuming that his relationship with decedent had been finally terminated, took all the papers in the Arbuckle file and destroyed them by burning, including the 1933 will and the codicil thereto. He destroyed the 1933 will and the codicil thereto in the Absence of decedent, without her direction and without her knowledge or consent. Facts giving color to appellant’s claim on decedent’s bounty and showing that in naming West as the principal beneficiary in the 1933 will decedent was discharging an obligation to him for which she had received consideration, were also stated.
We, of course, assume the facts stated in the opening statement to be true for the purpose of this decision.
*566
Where it is shown that a will cannot be found after the death of the testator and when last seen or known to exist it was in his possession, two inferences arise: (1) that the will was destroyed by the testator, and (2) that the act of destruction was done
animo revooandi. (Estate of Johnston,
Only an interested person may contest a will either before or after probate. (Prob. Code, §§ 370, 380.) An interested person is one who has “such an interest as may be imparied or defeated by the probate of the will, or benefited by setting it aside.”
(Estate of Plant,
In a contest of a will after probate the main issue to be adjudicated is the validity of the will admitted to probate, not the absolute validity of an earlier will under which the contestant claims; and a prima facie showing of the contestant’s interest is sufficient.
(Estate of Langley,
Section 350 provides that no will can be proven as a destroyed will “unless . . . shown to have been destroyed fraudulently ... in the lifetime of the testator, without his knowledge ...” Section 350 is remedial in its nature and is to be liberally construed in furtherance of justice and for the prevention of fraud.
(Estate of Camp,
It is undeniable, upon the facts stated to the court, that the testatrix did not destroy the will of 1933 or the codicil thereto, nor was either of them destroyed in her presence, or by her direction, or with her consent or knowledge. It follows that neither the 1933 will nor the codicil thereto has been legally revoked. Nowhere does the Probate Code declare that the destruction of a will by someone other than the testator, without his knowledge or consent, destroys the status of the will as an executed instrument. A will duly executed may continue to exist although the paper on which it is written has been destroyed. Unless revoked by the testator in one of the ways provided by the statute, it continues to exist as a will. It is expressly declared that a revocation can be made only in the manner and by the means prescribed by the Probate Code. (Prob. Code, § 74.) Destruction without intention to revoke is not a prescribed method of revocation; neither is destruction by someone other than the testator, not done in his presence, and done without his direction and without his knowledge or consent, a prescribed method of revocation. Under the statutes such destruction does not operate to revoke a will. The duly executed will has a potential existence, subject to defeat only
*568
by revocation or by reason of impossibility of proof under the law. The destruction of a will during the lifetime of the testator should not preclude the probate of the will if the act of destruction was not accomplished under such conditions as to revoke it and if the proof meets the requirements of section 350. Section 350 relates wholly to the proof that must be furnished and the facts which must be established in order that a destroyed will may be admitted to probate.
(Estate of Patterson,
Respondents contend that the allegedly destroyed will may not be proven because it was not “destroyed fraudulently.” Appellant, on the other hand, contends that the destruction by the custodian of the will during the lifetime of the testatrix, without her knowledge or consent, amounts to a constructive fraud and thus a fraudulent destruction within the meaning of Probate Code section 350.
Fraud is either actual or constructive. It is conceded that actual fraud is not present here. Civil Code, section 1573, defines constructive fraud as consisting: “ . . . 2. In any such act or omission as the law specifically declares to be fraudulent, without respect to actual fraud.” Fraud assumes so many shapes that courts and authors have ever been cautious in attempting to define it. Each case must be considered on its own facts. (12 Cal.Jur. 705, § 2.) In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damage to another.
(In re Hearn’s Will,
Constructive fraud usually arises from a breach of duty where á relation of trust and confidence exists.
(Darrow
*569
v.
Robert A. Klein & Co., Inc.,
The opening statement asserted facts showing that Bell was decedent’s trusted agent and business manager. Such a relationship is a confidential one, fiduciary in character. (Da
rrow
v.
Robert Klein & Co., Inc.,
other duties as decedent’s trusted agent, Bell accepted custody of the 1933 will and codicil. In so doing, he accepted the responsibilities that went with that custodianship, to wit, to safely preserve the will and codicil for decedent until her death or until called for by her, and upon her death to deliver them (since he was named as executor in the will) to the clerk of the court having jurisdiction of the estate for probate. (Prob. Code, § 320.) Bell was, therefore, charged “with the execution of this trust.”
(Mastick
v.
Superior Court,
Bell’s action in destroying, without the knowledge or consent of the decedent, the very thing that had been entrusted to his care for safekeeping, had all the actual consequences and all the legal effects as though it had been destroyed under eircum *570 stances amounting to actual fraud. He not only violated the confidence and trust which decedent had reposed in him and failed in the duties which he had assumed by his acceptance of the will (see Civ. Code, §§ 2229, 2234, 2322), but his act served to defeat the wishes and intent of the decedent with regard to her will. Such violation, although done in good faith, is, in the eyes of the law, a constructive fraud upon the decedent and the beneficiaries named in the 1933 will and the codicil thereto. It was a fraudulent destruction of the will and codicil within the meaning of Probate Code section 350.
Our conclusion is in line with the decisions in other jurisdictions having statutes similar to Probate Code, section 350. Among other eases are the following:
Schultz
v.
Schultz,
The statute on which section 350 is based was originally adopted in 1850. (Stats. 1850, chap. 129, § 38, p. 379.) As enacted, it was identical with the then New York statute. * The New York statute was enacted in 1827. 1 RL. 364, title I, art. third, § 89. See New York Rev.Stats. 1846, vol. 2, p. 133.) Prior to 1850 the courts of that state had said that the fraudulent destruction of a will did not amount to a revocation in law, and that if its contents could be satisfactorily shown it would be admitted to probate. (Idley v. Bowen (1833), 11 Wend. (N.Y.) 227, 236.)
In
Schultz
v.
Schultz, supra,
In the Dorrity case (
The same principle was followed in
Rose
v.
Hunnicutt,
Estate of Kidder,
We conclude appellant made a sufficient showing in his opening statement that he is able to establish at least a prima facie case that he is an interested person entitled to contest the will of November 19, 1939, and that the motion to dismiss the proceeding should have been denied.
Judgment reversed. Respondents to bear appellant’s costs on appeal.
Shinn, P. J., and Wood, J., concurred.
A petition for rehearing was denied August 17, 1950. Respondents’ petition for a hearing by the Supreme Court, diminution of record, to vacate decision and consolidate this appeal with appeal taken in action No. 530381 of the Superior Court of Los Angeles County, and to stay all proceedings until the determination and decision upon the appeal in said action No. 530381, denied. Traynor, J., voted for a hearing.
Notes
The original California statute and the New York statute read: “No will . . . shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions shall be clearly and distinctly proved by at least two creditable witnesses, a correct copy or draft being deemed equivalent to one witness.”
Under section 143 of the Surrogate’s Court Act, a lost or destroyed will may be admitted to probate in the Surrogate’s Court if “the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two creditable witnesses, a correct copy or draft being equivalent to one witness.”