106 Me. 51 | Me. | 1909
This appeal from the decree of the Judge of Probate of Somerset County approving and allowing the last will and testament of Leonard Lord is reported to this court from the Supreme Court of Probate for decision upon so much of the evidence as is legally admissible.
It is admitted that the will of 1903, which was allowed by the Judge of Probate, was at the time of its execution, a valid will but it is the contention of the contestants that the testator in the summer of 1905 made a second will, lost or destroyed, which, by reason of its inconsistent provisions worked a revocation of the earlier will.
The existence of a lost will must be proved by evidence clear, strong, satisfactory and convincing: Connor v. Pushor, 86 Maine, 300, 302; The evidence must be strong, positive and free from doubt; Newell v. Homer, 120 Mass. 277, 280; See also Liberty v. Haines, 103 Maine, 182, 190-2. If the instrument, propounded as a revocation of a will, be in the form of a will, it must be perfect as such and subscribed and attested as required by the statute; Doane v. Hadlock, 42 Maine, 72, 74; Laughton v. Atkins, 1 Pick. 535, 541; See also Kimball v. Morrell, 4 Maine, 368; Dunlap v. Glidden, 31 Maine, 510.
Neither of the alleged witnesses to the will alleged to have been made in the office of Mr. Davis saw the signature of Leonard Lord
The testimony of Daisy P. Bartlett as to the attestation of the alleged will shown her by Lord in August, 1905, Is also insufficient to prove due attestation of the will. As she is unable to give the names of two of the alleged witnesses, there can be no proof of their signatures. Her testimony as to the alleged signatures of Abel Davis as a subscribing witness, if offered in support of its genuineness was clearly inadmissible as it is not shown that she had ever seen him write or was then familiar with writings acknowledged to be his, or that she was an expert in handwriting who had qualified herself to testify in the case. Moreover, in view of her oral declarations and those contained in her letters made and written in the summer of 1906 to the effect that the alleged will was signed by two people as witnesses and that she had no recollection of the names of any of the witnesses, the evidence that Abel Davis’ name was upon the alleged will is neither convincing nor free from doubt. It is not necessary to add that, as we have found that the transaction in Mr. Davis’ office occurred in September, the alleged August will can receive no aid therefrom.
The will of 1903 was found in the secretary and not in the safe of the testator, where his more valuable papers were kept, but this fact taken in connection with either the water stains or the pencilings, or both, does not afford’ evidence from which an animus revocandi can be found or presumed: Throckmorton v. Holt, supra: Williams v. Williams, 142 Mass. 515: Fellows v. Allen, 60 N. H. 439.
Decree of the prohate court affirmed with costs.