Behrens v. Behrens

• Decision Date: 20 May 1890
• Citation: 25 N.E. 209,47 Ohio St. 323
• Parties: BEHRENS v. BEHRENS.
• Court: Ohio Supreme Court

25 N.E. 209

47 Ohio St. 323

BEHRENS v. BEHRENS.

Supreme Court of Ohio.

May 20, 1890

Error to circuit court, Defiance county.

The original action was commenced in the court of common pleas of Defiance county, by the plaintiffs in error, Henry Behrens Frederick Behrens, and John Knape, administrator of Daniel Behrens, deceased, against the defendant in error, George Behrens, to contest the validity of a lost or destroyed will alleged to have been made by Daniel Behrens, the father of the contestants Henry Behrens and Frederick Behrens, and of the contestee, George Behrens, and to have been destroyed after his death, and which was by the probate court of Defiance county established as to its contents, and admitted to probate on the 28th day of July, 1885. A transcript from the probate record reads as follows: ‘ The court being satisfied from the testimony taken that the said Daniel Behrens did, on the 31st day of October, 1882, duly execute his last will and testament in the mode provided by the law at the time of its execution; that said Daniel Behrens died on the 28th day of November, 1884; and that said will was not revoked by said testator, but that it has been lost or destroyed subsequent to the death of said testator,-finds and does hereby establish the contents of said last will and testament to have been, as near as can be ascertained, as follows, to-wit: Item 1st . Said testator, by said last will and testament, devised to his son George Behrens the following described lands and tenements in fee-simple to-wit: The north half of the south-west quarter of section number twenty-six, (26,) township number five (5) north range number five (5) east, in Defiance county, Ohio. Item 2d . He also devised to his said son George Behrens, and to his sons Frederick Behrens and Henry Behrens in equal shares, all the personal property, goods, chattels, moneys, notes, rights, and credits of which he should die possessed, after all his debts were paid. Item 3d . He also appoints his said son George Behrens executor of his said last will and tetsament, and the court further order that said will and testament be recorded as in cases of other wills admitted to probate.’ The amended petition in the court of common pleas, among other things, alleged three grounds of contest: First , that the contents of the will were not truly and correctly stated by the probate court in its finding and order; second , that undue influence was used by the defendant to induce Daniel Behrens to make the will in his favor; third , that Daniel Behrens in his life-time, and while of sound, disposing mind, destroyed the will for the purpose, and with the intention, of revoking the same. The defendant, for answer, admitted that the probate court, on the 28th day of July, 1885, under proceedings duly had, admitted to probate the last will and testament of Daniel Behrens, deceased, as set forth in the amended petition, but denied each and every other allegation contained in the petition. On the trial in the court of common pleas, the evidence was mainly directed to the question whether the will was destroyed before or after the death of the testator. The plaintiffs, to show that the will, which was not found after the death of the testator, was destroyed by the testator with the intention of revoking it, offered and gave in evidence, against the objection and exception of the defendant, the declarations of the testator made to several persons at different times during the summer and fall before his death. The following witnesses to those declarations were offered by the plaintiffs, and testified as follows: John C. Schultz: ‘ In the forepart of the summer of 1884, the latter part of May or forepart of June, old man Daniel Behrens came into my store in Defiance, and made the remark he would (or had) put his papers in the stove and burn them up. I said, ‘ You did not burn up your deeds, did you?’ He said, ‘ No, my will.’ He said he would serve his children all alike. That is all I heard him say. I think he was then called out of the store.' Henry Behrens: ‘ He [Daniel Behrens] said what he had should be among us three children. He said that at my house. He was there a couple of days. It was in May, 1884. He was quite old, and I wanted to know about his circumstances. He said we would find everything in his trunk, and it was to be divided amongst us three children. That was the last time he was at my house. I never had any talk with him afterwards about his property.’ Frederick Behrens: ‘ About four weeks previous to his death I asked him [Daniel Behrens] how it was about his circumstances. He said that the money that was then on hand he saved himself. The land was all in his own name. ‘ All three of you are my boys; one shall not have any more than another.’ ' Dora Behrens: ‘ Two weeks before he died, he [Daniel Behrens] said he had three sons, and all three should all share alike. He did not want no damning after his death, any swearing or cursing.’ Mary Behrens: ‘ I had one conversation with Daniel Behrens about the disposition of his property. He said he had three sons, and they all should have an equal share. That was all that was said there about his sons. My husband and children were present. This conversation was in May, 1884.’ William Schultz: ‘ I had a little talk with the old gentleman [Daniel Behrens] in March, 1883, about the disposition of his property. He got out his papers and showed me that he had made a will. He showed it to me. I looked at it, and did not give him much satisfaction. I told him it was not made right; that I did not read it all, but I did not think it was made right. He said he thought so himself. I told him to put his papers back where they belonged. That was all that was said. This was in his own individual house, on his farm. In 1884, about wheat-harvest time, I had another talk with him. I came in the back way, and came on the porch. There was nobody at home but a boy and the old man. He asked what I thought of his son George. I told him I did not think much of him. He then said ‘ I tell you, George has just cut his nose off his face.’ He said: ‘ I have burned that will, and they will go in equal shares now.’ ' At the close of the testimony, and after the conclusion of the argument, the court charged the jury, and to the whole charge there was a general exception by the defendant, without stating specifically the portion or proposition of the charge excepted to, or the grounds of his exception. And thereupon the plaintiff requested the court to give certain charges to the jury hereinafter stated in the opinion, which charges, as requested, the court gave, to which the defendant by his counsel excepted. The jury returned a verdict for the plaintiff, finding that the will, as found by the probate court and admitted to probate therein as the last will and testament of Daniel Behrens, deceased, was not his last will and testament. A motion for a new trial, filed by the defendant, was overruled; judgment was entered on the verdict; and a bill of exceptions, embodying all the evidence and charge of the court, was allowed, signed, and filed as part of the record. On petition in error by the defendant, the circuit court reversed the judgment of the court of common pleas, and remanded the cause for further proceedings. To reverse the judgment of the circuit court, and affirm that of the court of common pleas, this proceeding is instituted.

Syllabus by the Court

1. Where the probate court has found and established the contents of a lost, spoliated, or destroyed will, in a future proceeding to contest the validity of such will, the order of probate will be prima facie evidence of the due attestation, execution, validity, and contents of the will, and the burden of proof will be on the contestants to invalidate such will.

2. When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is that it was destroyed by the testator with the intention of revoking it.

3. To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy, the same.

Newbegin & Kingsbury , for plaintiff in error.

J. R. Tyler, Peaslee & Enos and Stephenson & Knapp , for defendant in error.

DICKMAN, J.

It is conceded that Daniel Behrens, on the 31st day of October, 1882, made and executed, in due form of law, his last will and testament. On the 28th day of November, 1884, he died, leaving real and personal property, and, as his heirs at law, Frederick Behrens and Henry Behrens, the plaintiffs herein, and George Behrens, the defendant, his only sons. After his decease, it was discovered that his will had been lost or destroyed, and the question arose, whether the will was lost or destroyed prior or subsequent to the death of the testator, and if before his death, whether or not it was destroyed by the testator himself, with the intention of revoking the same. On the application of George Behrens, the probate court found that the will was not revoked by the testator, but that it had been lost or destroyed subsequent to his death, and thereupon established its contents to be as in the alleged copy produced in court, and admitted the same to probate.

In the action to contest the validity of the will, the order of probate was prima facie evidence of its due attestation, execution, and validity. By section 5948, Rev St., last wills and testaments, which have been lost, spoliated, or destroyed, when established as to their contents, and admitted to probate, are, in all respects, to be governed by the laws in force relating to other wills, not only as relates to the contents of the same, but in all...