186 Ind. 193 | Ind. | 1917
After the death of Calvin I. Fletcher a paper dated in 1895 and purporting to be his last will was produced by its custodian and offered for probate. Nellie W. Fletcher, the widow, appeared to this proceeding and filed a petition to resist the probate of the will offered, in which petition she stated that she was the sole and only heir to Calvin I. Fletcher, deceased, and that the will offered for probate was revoked by the testator about seven years before his death by another will duly executed in- the year 1906, which contained a clause revoking all former wills. The prayer of this petition was that the probate of the will offered be denied.
Emily Fletcher, a sister of Calvin I. Fletcher, filed a cross-complaint in the proceeding in which she admitted the revocation of the will of 1895 by the later
“I hereby give and bequeath unto my sister Emily Fletcher the sum of fifteen thousand'dollars”.
The cross-complainant stated that she was not able to set out a complete copy of said 'will or to state the entire contents thereof, and she prayed that such will, containing the clause set out, be adjudged to be the last will and testament of Calvin I. Fletcher, deceased, and that it be admitted to probate, and that the executrix be ordered to comply with the provisions of the clause set out. After hearing the evidence the court found-that the alleged will dated in 1895 was revoked in the lifetime of Calvin I. Fletcher, and that it was not his last will and testament. The court further found that the alleged last will of Calvin I. Fletcher described in the cross-complaint of Emily Fletcher was not clearly proven by two witnesses and that it was riot shown to have been in existence at the time of the death of the alleged testator. There was judgment that neither of said wills be admitted to probate. A reversal is asked on the ground that the court committed error in overruling appellant’s motion for a new trial.
1. Appellant had the burden of proving the material facts alléged in her cross-complaint. She was required to prove as a part of the facts necessary to sustain her'cause of action that the will of 1906 had not been revoked by the testator in his lifetime and also that it contained the clause set out in the cross-complaint by which a bequest was made to appel
Judgment affirmed.
Note. — Reported in 115 N. E. 582. Wills: (a), necessary proof in probating, 110 Am. St. 454; (b) whether the part of a lost or destroyed will which can be established may be admitted to probate where there are other portions that cannot be established, 26 L. R. A. (N. S.) 654; (c) admissibility of a part only of a lost will, 18 Ann. Cas. 630. See under (1) 40 Cyc 1279.