228 N.W. 376 | S.D. | 1929
John H. McCoy died in Beadle county, S. D., on November 13, 1925, being a resident of said county and leaving estate therein. In July, 1926, proponent instituted a proceeding in the county court of Beadle county to establish as a lost will, and have admitted to probate, a certain will which proponent claimed was executed by the decedent about the month of Septem
Section 3213, Rev. Code 1919, provides for taking proof of the execution and validity of a lost or destroyed will and the establishment thereof, and section 3214, Rev. Code 1919, reads as follows:
“Special Requisite's of Proof. No1 will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of -the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.”
Section 3214, Rev. Code 1919, has 'been the law of this state since the adoption of the Territorial Code of 1877, wherein- it appears as section 39 of the Probate Code. It was taken from section 1339, California Code of Civil Procedure 1872, in which state it still continues with the addition of a special legislative act, originating after the San Francisco fire, providing for proof of wills destroyed by a public calamity. See section 1339, Cal. Code Civil Procedure, as amended by Stats, and Arndts. 1907, p. 122. The same statute exists in Minnesota as section 7280, General Statutes 1913, and the interpretation thereof is 'by no means free from perplexities and doubt. See 26 Cal. Jur. p. 1056 et seq., Re Estate of Havel, 156 Minn. 253, 194 N. W. 633, 34 A. L. R. 1300, and note 34 A. L. R. 1304.
A number of questions are presented by this appeal, some of them of no little difficulty, but one proposition we think is decisive of the case. Regardless of any doubts which may arise with regard to the interpretation of section 3214, Rev. Code 1919, it seems clear
There appears to have been some question in the mind of the circuit judge as to the competency of some of the testimony offered by proponent for the purpose of establishing the contents and provisions of the will sought to be probated. All the offered evidence was received, however, and none of it was thereafter stricken from the record. We have carefully examined all the evidence offered by proponent with reference to the fact and circumstances attendant upon the execution of the will and: the contents and provisions thereof. Conceding the competency of all the testimony offered, we are by no means able to say that there is a clear preponderance against the finding of the trial court that the provisions of the will were not established to the degree required by the statute. In fact, we think the trial judge was correct in so finding.
We believe that no good purpose would be served by setting out the testimony regarding this matter or commenting thereon. If the provisions of the will were not clearly and distinctly proved in the manner and to the degree required by statute, and we think they were not, other questions presented and argued 'in -the briefs need not be considered.