270 Pa. 210 | Pa. | 1921
Opinion by
A reputable scrivener handed to decedent a paper prepared at the latter’s direction to be executed as his will. For present purposes we may assume this paper, unchanged, was duly executed by decedent, attested by two subscribing witnesses a few days before his death, placed in a bureau drawer some feet from his bed, and decedent was thereafter in such physical condition as to be unable to reach the place where the will was located. After his death, this paper could not be found. No information relative to its existence has been brought to light, though testator repeatedly spoke of it just before his death; but for his enfeebled condition and these references to the will, the usual presumption that decedent destroyed it would prevail; then we have statements in the record concerning the very suspicious conduct of a brother, in decedent’s room after death, who was not to be benefited under the terms of the will. A substantial reproduction as testified to by the same scrivener, with the names of two subscribing witnesses attached, was offered for probate and the question raised in the petition was certified to the court below for determination, and, upon final hearing, probate was refused.
Was there sufficient proof of the contents of the will, as executed before the two subscribing witnesses, to admit the copy thus identified to probate? The statement of facts, so narrated, are viewed in the light most favorable to proponents. The attesting witnesses knew nothing of the contents of the will, nor did they know (nor could they know, without knowledge of the original), that the supposed reproduction, as offered for probate, was in substance a copy of the instrument they had
The burden rested on the proponents, and, if we eliminate the scrivener’s testimony, we have absolutely no evidence of the contents of the disputed will, or that the original of what is represented by the “substantial reproduction” ever existed. The evidence that the will was called the Riddle will by decedent is not such a declaration of identification as would supply the proof of contents necessary by two witnesses; this will be more manifest later on; nor can it be used in support of the scrivener’s testimony as to contents, inasmuch as each witness “must be competent, without aid borrowed from the other”: Hock v. Hock, supra. Of course decedent should know the contents of the instrument he has executed, and, when he speaks of its terms, he should be taken as having no motive for misrepresenting them. But declarations can be availing only when they go to the immediate act of disposition. That the reproduction may correspond in disposition with what those who knew the testator described as the most probable objects of his bounty, and that such evidence was confirmatory of the disputed will, does not bridge the gap. Even though the scrivener had witnessed the will and then made the copy, as he did in Rhoads’s Estate, there would be but one witness to the contents.
The court is not assiduous to restrict the rules of evidence relating to proof of a lost will, as distinguished
The decree of the court is affirmed, costs to be paid by appellants.