Hull v. Cartin, 6706

Decision Date27 July 1940
Docket Number6706
Citation105 P.2d 196,61 Idaho 578
CourtIdaho Supreme Court


1. Under the statute requiring that provisions of a lost or destroyed will be proved by at least two credible witnesses evidence consisting of copy of will, testimony of attorney who drafted and typed will, and testimony of witnesses who were informed by testatrix as to part of contents of the will, was insufficient to prove a lost will. (I. C. A., secs 15-213, 15-231.)

2. The declarations of a testator may be admitted to overcome or rebut the legal presumption that a will has been destroyed animo revocandi.

3. In proceeding to probate a lost will, carbon copy of the will proven by the one witness did not constitute original evidence or a duplicate original of the will where copy was never executed by being signed and witnessed. (I. C. A secs. 15-213, 15-231.)

4. Statements and declarations of the testator made after the due execution of a will may be admitted to show that the will was lost or unavoidably destroyed or stolen against the wish of the testator during his lifetime.

5. It is neither a compliance with the statute requiring that proof of a lost will be made by two credible witnesses nor with general rules of evidence, for a subscribing witness to a will who never read or heard read the will, to read a copy identified by a third party who wrote it and then testify to the contents of such copy as the contents of the will since such proof fails to establish the actual contents of the will subscribed. (I. C. A., sec. 15-231.)

6. That proof by a witness that a copy of a will is a carbon or duplicate copy of a lost will is the best evidence of contents of will does not make such copy "best evidence" or even admissible on examination of any other witness as to the provisions of the will unless witness personally knows it is a carbon or duplicate copy of the alleged lost will.

7. The right to dispose of property by will is not a property right or a natural right.

8. Legislature, in conferring the authority to make a will and have it admitted to probate, may prescribe the procedure and condition under which it may be done.

9. The statute requiring that a lost or destroyed will be proved by at least two credible witnesses is not in conflict with constitutional article prohibiting legislature from depriving the judicial department of any of its power or jurisdiction. (I. C. A., sec. 15-231; Const., art. 2, and art. 5, sec. 13.)

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Petition by respondents in the probate court for probate of will of Sarah Gearon, Deceased, contested by appellants. Petition denied and dismissed in probate court and on appeal to the district court judgment was entered, reversing the judgment of the probate court, from which judgment contestants appealed. Judgment of the district court reversed and cause remanded with directions to affirm judgment of the probate court.

Reversed and remanded with directions. No costs awarded.

Walter H. Hanson and Claude D. Randall, for Appellants.

A will last seen or heard of in testator's custody which cannot be found after death, is presumed to have been destroyed by the testator with the intention of revoking it, and the burden is on proponents to overcome the presumption. (68 Corpus Juris, "Wills," p. 992, par. 759; 28 Ruling Case Law, "Wills," p. 384, par. 388; In re Carlson's Estate, 153 Ore. 327, 56 P.2d 347; In re LeSure's Estate, 21 Cal.App. (2d) 73, 68 P.2d 313; In re Colbert's Estate, 31 Mont. 461, 78 P. 971, 80 P. 248, 107 Am. St. 439, 3 Ann. Cas. 952.)

Declarations of the testator, even within a few days prior to death, are insufficient to overcome the presumption of revocation when testator was not physically or mentally incapacitated. ( Scott v. Maddox, 113 Ga. 795, 39 S.E. 500, 84 Am. St. 263; Buchanan v. Rollings, (Tex. Civ. App.) 112 S.W. 785; In re Dalbey's Estate, 326 Pa. 285, 192 A. 129; Pritchard v. Harvey, 272 Ky. 58, 113 S.W.2d 865.)

Fraudulent destruction of a will enclosed in an envelope is not prima facie proved by evidence that a similar envelope was seen in possession of one other than testator. (Wells v. Robinson Const. Co., 52 Idaho 562, 16 P.2d 1059; St. Mary's Home, etc., v. Dodge, 257 Ill. 518, 101 N.E. 46.)

The Idaho statute requires that the provisions of a lost or destroyed will be proved by two credible witnesses, testifying from their own knowledge, and not from declarations of the testator. (I. C. A., sec. 15-231; 68 Corpus Juris, "Wills," p. 1034, par. 822; In re Needham's Estate, 70 Wash. 229, 126 P. 429; In re Calvin's Estate, 188 Wash. 283, 62 P.2d 461; In re Thompson's Estate, 185 Cal. 763, 198 P. 795.)

James A. Wayne and F. C. Keane, for Respondents.

One seeking the admission to probate of a lost will has the burden of proving the execution of the will, testamentary capacity of the testator, the existence of the will at the time of the death of the testator or that it has been fraudulently destroyed in his lifetime, and the provisions of the will. (I. C. A., secs. 15-230-233.)

Any person who is able to transact ordinary business is competent to make a will. (Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082.)

The burden of proving mental incapacity is upon the contestants of a will. (Hansen's Will, 50 Utah 207, 167 P. 256; Sexton's Estate, 199 Cal. 759, 251 P. 778.)

There can be no implied revocation of a will under the Idaho statute, and, therefore, no presumption of revocation arising from the fact that a will was last seen in the possession of the testator and cannot be found upon his death. (I. C. A., secs. 14-307, 14-308; Patterson's Estate, 155 Cal. 626, 102 P. 941, 132 Am. St. 116, 18 Ann. Cas. 625, 26 L. R. A., N. S., 654; Comassi's Estate, 107 Cal. 1, 40 P. 15, 28 L. R. A. 414; Olmsted's Estate, 122 Cal. 224, 54 P. 745, 746; Silva's Estate, 169 Cal. 116, 145 P. 1015; McCauley's Estate, 138 Cal. 432, 71 P. 512.)

Any presumption arising from the fact that a will left in the custody of the testator, and not found upon his death, has been revoked by him, is always rebuttable, and post-testamentary declarations of the testator are admissible and sufficient to overcome such presumption. (28 R. C. L., sec. 387; 68 C. J., sec. 759; Miller's Will, 49 Ore. 452, 90 P. 1002, 124 Am. St. 1051, 14 Ann. Cas. 277; Sweetman's Estate, 185 Cal. 27, 195 P. 918; Eder's Estate, 94 Colo. 173, 29 P.2d 631.)

The provisions of a lost will may be proved by secondary evidence. (I. C. A., sec. 16-411, subd. 1; Miller's Will, supra: Auritt's Estate, 175 Wash. 303, 27 P.2d 713; Hanna v. Magee, 189 Ark. 330, 72 S.W.2d 237; Drohan v. Avellar, 276 Mass. 441, 177 N.E. 583.)


This case was heard at the November, 1939, term at Coeur d'Alene and we later ordered a reargument which was had at the recent June term. The case involves the estate of Sarah Gearon, deceased, and the probate of an alleged will made by her March 21, 1935. Mrs. Gearon died at Wallace March 25, 1937, leaving surviving her three sisters and a niece residing in the state of Washington, and a brother living in Minnesota. At the time of her death, decedent was 69 years of age. Mrs. Gearon had been a resident of Idaho for many years, one witness testifying to having known her at the Tamarack mine in 1896. Prior to his death in 1924, her husband Pat Gearon was in the mining brokerage business in Wallace. Her son, and only child, passed away in the spring of 1934. After the death of her husband, Mrs. Gearon owned several improved business properties in Wallace: the old Ryan Hotel building (partially destroyed by fire in 1933, and later reconstructed); the Ryan Annex, a three-story building, and the Gearon Building, a two-story brick building. According to the inventory and appraisement, these properties, valued at $ 72,000, comprised the bulk of her estate.

While decedent's testamentary capacity was put in issue by contestants, no substantial evidence was elicited raising any serious doubt as to her mental capacity; and, as we view the case, that issue does not arise here.

March 27, 1937, respondent Hull filed a petition praying that he be appointed "as special administrator of the estate of said Sarah Gearon, deceased, to take charge of, collect and preserve the property of said estate pending the appointment of a regular administrator or the qualification of an executor herein." Order was entered the same day appointing him as such special administrator. March 30, 1937, the three sisters joined in a petition, praying for the appointment of Hull as administrator of the estate. April 6th the petition was filed in the probate court; April 20th an order was made and entered appointing Hull as general administrator. May 4, 1937, O. L. Jones, Alex Chisolm and P. V. Whelan were appointed appraisers of Mrs. Gearon's estate; and June 11th their inventory and appraisement was submitted, showing decedent's property to be valued at $ 78,614.28.

September 14, 1937, Hull and the other respondents Worstell and Mortimer filed petition for the issuance of letters testamentary; attached to the petition and made a part thereof was an alleged copy of decedent's will executed March 21, 1935. The will presented for probate made a number of bequests to relatives and friends and appointed H. J Hull, Lawrence E. Worstell and Geo. A. Mortimer as trustees, with power and direction to hold and manage the estate and pay bequests from time to time as they fell due, until the death of the last one of decedent's sis...

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12 cases
  • Killgore's Estate, In re
    • United States
    • Idaho Supreme Court
    • November 22, 1963
    ...declarations of the testator tending either to support or rebut the presumption are admissible on the issue of revocation. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196; In re Bond's Estate, 172 Or. 509, 143 P.2d 244; In re Welch's Estate, 60 Ariz. 215, 134 P.2d 701; In re Ronayne's Estate, 10......
  • Swaringen v. Swanstrom
    • United States
    • Idaho Supreme Court
    • December 26, 1946
    ... ... least two credible witnesses." See Hull v ... Cartin, 61 Idaho 578, 587, 105 P.2d 196, and cases cited ... There ... is not a ... ...
  • City of Twin Falls v. Koehler
    • United States
    • Idaho Supreme Court
    • March 14, 1942
    ... ... does not preclude its existence and operation. (Hull v ... Cartin, 61 Idaho 578, 589, 105 P.2d 196.) There are a ... great many occurrences and ... ...
  • In re Refund of Contributions of Batt
    • United States
    • Idaho Supreme Court
    • March 19, 1942
    ...counsel and they have argued it here, we have concluded to consider the question." ( Hull v. Cartin, 61 Idaho 578, [123 P.2d 1008] at 596, 105 P.2d 196.) We will however again, but out the hazards of such course, reserve, as in Big Wood Canal Co. v. Unemployment Compensation Division, 61 Id......
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