Lot Gardner's Estate

164 Pa. 420 | Pa. | 1894

Opinion by

Mb. Chief Justice Sterrett,

The burden having been on the proponents in this case to overcome the presumption of revocation which sprang out of the fact that the will, which Lot Gardner admittedly executed, could not be found at his death, made not only testator’s character, condition, acts and declarations, but the conduct and interests of those who were around him, from and after the date of his will, legitimate subjects of inquiry. “Each of these lines of proof was important in strengthening the other, and both together seem necessary to constitute full proof: ” Youndt v. Youndt, 3 Grant, 140. The theory of proponents being that of concealment or destruction, the latitude of proof must have been necessarily wide. Fraud is rarely capable of proof in a direct way. “ It is the chain of less direct circumstances, all pointing in the same way until there seems no other reasonable mode of reconciling them, that must usually be depended on in reaching a conclusion: ” Eichenlaub v. Hall, 163 Pa. 201. The issue demanded here was whether or not there had been a revocation of the will of Lot Gardner, and was of right unless the whole evidence of the fact alleged was so doubtful and unsatisfactory that a verdict in favor of the validity of the will would not be permitted to stand. The question was one of sufficiency of evidence.

The fact that Lot Gardner’s long settled plan of testamentary disposition was expressed in this will; that he was a man of strong character and tenacity of purpose; that so short a time elapsed from the date of the will until he died; that after he found he would be unable to distribute the rest of his estate, as he had intended, during his lifetime, and up to the point of time when his physical condition rebutted any presumption of access to the trunk in which he had placed his will, he repeatedly expressed a wish that the scrivener who had drawn, would come and make “changes” in his “will,” and the suspicious conduct of those who surrounded him and whose interests would plainly be subserved by intestacy, would, standing unexplained and uncontradicted, have amply justified submission to the jury. Against these facts stand the presumption of revocation arising from nonproduction of the will, and the testimony of the witnesses whose suspicious conduct had put them on the defensive, and whose explanation was for the jury. No one claimed to have seen or heard the testator speak of the cancellation; it rests solely upon the rebuttable presumption arising from nonproduction.

The whole evidence was such as plainly required an issue, and the case must be sent back for that puz'pose.

The decree refusing the issue etc. is revez’sed and set aside at the appellee’s costs, azid it is ziow ordered that the record be reznitted to the court below with instructions to direct an issue to the court of coznznozr pleas, in due forzn, for the purpose of determining the disputed questiozis of fact.