In Re Lawrence's Will.

• Decision Date: 22 May 1946
• Citation: 47 A.2d 322
• Parties: In re LAWRENCE'S WILL.
• Court: New Jersey Prerogative Court

47 A.2d 322

In re LAWRENCE'S WILL.

Prerogative Court of New Jersey.

May 22, 1946.

Proceeding in the matter of the appeal from the decree of the Passaic County Orphans' Court admitting to probate a certain paper writing as the last will and testament of Charles Edgar Lawrence, deceased.

Decree of Orphans' Court reversed and will denied probate.

Syllabus by the Court

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1. A will, in the custody of testator, not found on his death, will be presumed destroyed by him, animus revocandi, in the absence of proof to the contrary.

2. In the instant suit, evidence examined, and held, proponent has not met the presumption of revocation by destruction.

Hyer & Armstrong, or Rahway, for caveator-appellant.

Wallisch & Wallisch, of Passaic, for proponents-respondents.

LEWIS, Vice Ordinary.

This is an appeal from a decree of the Orphans' Court probating the will of Charles Edgar Lawrence, who died February 4, 1945. In May, 1936, decedent executed the will in question, in duplicate, taking one copy with him and leaving the other with the counsel who drew it. The original, in the possession of decedent, has disappeared; the duplicate was produced and used to probate the original as a lost will. Before the institution of the proceedings to probate the will, letters of administration had been issued to a nephew of decedent, which were revoked on the probate.

The presumption is that when a will was in the possession of a testator, as here, the fact that it cannot be found upon his death shows he destroyed it, animo revocandi. This presumption is rebuttable. Campbell v. Smullen, 96 N.J.Eq., 724, 728, 125 A. 569, 926; Croake v. Summit Trust Co., 119 N.J.Eq. 356, 182 A. 869; Calef's Will, 109 N.J.Eq. 181, 156 A. 475; Holcombe v. Holcombe, 39 N.J.Eq. 592. The proof necessary to rebut the presumption that it was destroyed animo revocandi must be sufficient to exclude any possibility of destruction by the testator himself. In re Bryan's Will, 125 N.J.Eq. 471, 5 A.2d 774; In re Casey's Estate, 127 N.J.Eq. 101, 11 A.2d 38; Calef's Will, supra. The fact that the will was executed in duplicate does not affect the rule. This was expressly held in Re Bates, 286 Pa. 583, 134 A. 513, 48 A.L.R. 294. Here the court says: ‘The duplicate occupies no higher position than an unexecuted copy and is merely evidence of the original's contents. The revocation of the latter by testator is a revocation of the duplicate, regardless of where kept or found.'

Respondents, the proponents of the will, contend they have fully met the presumption of destruction by the facts and circumstances shown. These disclose an unusual situation. For many years prior to his death, and in fact to the execution of the will, decedent lived in the same house with a brother, William Lawrence. They had nothing to do with one another and were not on speaking terms. They each lived in a separate part of the house. He asked the draftsman of the will to make it in duplicate, and to keep a copy for he feared that his brother might destroy his will if he found it. The original he took with him and placed in a strong box at his home. He showed it to two nieces, the beneficiaries of the will, and put it in the strong box. On his death...