93 Wis. 45 | Wis. | 1896
It appears from the record that Jane Valentine died at her residence, in Buffalo, Marquette county, Wis., Monday, July 10, 1893, leaving, her surviving, no hus
On the death of Mrs. Yalentine no will was found, and •thereupon Jacob H. Valentvne, named in the will, petitioned the county court of Marquette county “ to take proof of the execution and validity of such will, and to establish the same ” as a will “ lost or destroyed by accident or design,” ■as provided in the statute (sec. 3191, E. S.). Hpon the hearing of that petition the county court, January 11, 1894, established, allowed, and admitted to probate such written instrument, as the last will and testament of said déceased. Erom that judgment or decree the said Dougal McDougal,
Upon the trial of said matter in the circuit court that court found, as the county court had, the due execution and' contents of such will, and in addition the court found, in effect, that the will was in the possession of the deceased on the afternoon of the day previous to her death (being Sunday afternoon, July 9, 1893); that she died without destroying, canceling, or revoking the same; and that it was not, during her lifetime, canceled or destroyed by her authority, but was accidentally lost, or fraudulently destroyed or suppressed, previous to or subsequently to her death,— and thereupon affirmed the judgment of the county court establishing such will and admitting the same to probate. From that judgment the said Dougal McDougal, as such heir at law, brings this appeal.
Counsel for the contestants claimed, in his oral argument, that the trial court was misled into making such inconsistent rulings by something written by the writer of this opinion. By a more thorough acquaintance with the little book referred to, counsel would have found the proposition expressly sanctioned, that “ subsequent declarations of the testator are admissible to prove the existence or contents of a lost will;” and the proposition is supported by the citation of numerous cases. Oassoday, Wills, §§ 314-325. It may be, if counsel indulged in the same line of argument in the trial court as here, that the court was misled by the failure of counsel to distinguish between the admission of such declarations on the question of the revocation of a will, and the question of the existence or nonexistence of a lost will. Counsel seemed to. think that it was essential to the admission of such declarations to demolish the well-settled
That such subsequent declarations were admissible on the question of the existence or nonexistence of such lost will is .abundantly supported by numerous adjudications to which reference has already been made, and particularly the following, cited among others in Cassoday, "Wills, §§ 316-320, 386, 387: Sugden v. Lord St. Leonards (1876), 1 Prob. Div. 154, 17 Moak, Eng. R. 453-552; Keen v. Keen, L. E. 3 Prob. & Div. 105; Woodward v. Goulstone, 11 App. Cas. 469; Harris v. Knight, 15 Prob. Div. 170; In re Goods of Ball, 25 L. R. Ir. 556; Boudinot v. Bradford, 2 Dall. 266; Youndt v. Youndt, 3 Grant’s Cas. 140; Durant v. Ashmore, 2 Rich. Law, 184; Steele v. Price, 5 B. Mon. 58; Weeks v. McBeth, 14 Ala. 474; Lawyer v. Smith, 8 Mich. 412; Harring v. Allen, 25 Mich. 505; Patterson v. Hickey, 32 Ga. 156; Foster's Appeal, 87 Pa. St. 67; Pickens v. Davis, 134 Mass. 252; Southworth v. Adams, 11 Biss. 256. The learned counsel for the contestants cites the following additional cases, which support the conclusions reached: Collagan v. Burns, 57 Me. 449; Behrens v. Behrens, 47 Ohio St. 323; Collyer v. Collyer, 110 N. Y. 481; Comm. v. Trefethen, 157 Mass. 189,
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.