161 Ind. 110 | Ind. | 1903
— This action was instituted by appellees against appellant and a number of other defendants to establish and probate a will alleged to have been lost. A several demurrer to the complaint was overruled, and an exception duly reserved. On issue of fact joined, there was a trial by the court that resulted in a finding and judgment for appellees.
It is claimed by appellant’s counsel that the complaint is insufficient, in that it does not show that the will was in existence at the time of the death of the testatrix, or that it had been destroyed in her lifetime without her consent,
Was it the legislative purpose, in the enactment of the statute quoted, to permit a merely unrevoked will, that had been lost or destroyed in the lifetime of the testator, to be proved, on the theory that, because unrevoked, it still exists as an imperceptible register of the purposes of the testator ? _ We do not think so. There is no natural right to direct the transmission of property by will. The Gen
Under a statute of New York which is practically the same as the one under consideration, except that it contains no provision for the establishing of wills destroyed in the lifetime of the testator without his consent, it was held in Harris v. Harris, 36 Barb. 88, that the loss or destruction of the will must occur after the death of the testator, unless it was fraudulently destroyed in his lifetime. In a comparatively recent case that arose under the New York statute, it was said by the court of appeals: “The fact in issue was whether the instruments in question wer'e physicallv in existence at the time of the death of the testatrix,
Construing our statute as we think that it must be construed, it is evident that the complaint is insufficient. The ijscord .presents further questions, but as we can not anticipate to what’ extent they may arise upon another trial, we do not deem it profitable to go beyond the threshold question.
Judgment reversed as to appellant, with a direction to the court below to sustain his demurrer to the complaint.