244 Mass. 320 | Mass. | 1923
This is a petition to the Probate Court for Dukes County seeking to have a lost will admitted to probate by copy. The decree dismissing the petition recited, “it appearing after hearing thereon, that the original last will and testament of said deceased, of which the instrument herein recited purports to be a copy, was not in existence, uncancelled and unrevoked, at the
It is settled law that where a will once known to exist cannot be found after the death of the testator, there is a presumption that it was destroyed by the maker with an intent to revoke it. Davis v. Sigourney, 8 Met. 487. Newell v. Homer, 120 Mass. 277. The claim that this presumption was rebutted by the evidence in the present case, raised an issue of fact for the determination of the trial judge, and his finding must stand unless, on the record before us, such finding was plainly wrong. Townsend v. Townsend, 243 Mass. 401. This we are not prepared to say, notwithstanding the forcible argument of the appellant. It is not enough to show that a different conclusion might well have been reached. The controversy was one among members of a family. The judge had an opportunity to observe the witnesses, to appreciate the real feelings of Mrs. Dix toward her sons and niece, and so to draw inferences from the testimony which a mere reading of the printed record might not suggest. The will was executed on January 17, 1914. Thereafter Mrs. Dix lived at the home of her son Arthur, to whom the will gave all but one dollar of her property. Prior to May 18, 1919, she had a receipt signed by him, whereby he
Decree affirmed.