In re McCoy's Estate

• Decision Date: 16 July 1907
• Citation: 49 Or. 579,90 P. 1105
• Parties: In re McCOY'S ESTATE. v. McCOY et al. DENNING
• Court: Oregon Supreme Court

90 P. 1105

49 Or. 579

In re McCOY'S ESTATE.

DENNING v. McCOY et al.

Supreme Court of Oregon

July 16, 1907

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Proceedings by Snow Denning to establish and probate a will of J.J McCoy, deceased, in which William A. McCoy and others appeared as contestants. From a decree reversing the decree of the county court establishing the will and dismissing the cause, proponent appeals. Affirmed.

This is a proceeding to establish and probate a lost will. In the spring of 1900 J.J. McCoy made and executed in due form of law his last will and testament. He died on the 9th of January, 1904, leaving real and personal property of the probable value of $3,000. After diligent search it was impossible to find his will, and on March 25, 1904, Snow Denning, one of the heirs, filed a petition in the county court to establish such will and for an order admitting it to probate, alleging that it had not been revoked but was in full force and effect at the death of the testator. The other heirs joined issue on the averments of the petition, and upon evidence taken in the county court a decree was rendered establishing the will, from which an appeal was taken to the circuit court, where the decree of the county court was reversed and the cause dismissed. From this decree Mrs Denning appeals.

Dexter Rice, for appellant.

J.O Watson, for respondent.

BEAN C.J. (after stating the facts).

The will sought to be established and probated in this proceeding was prepared by Judge Fitzhugh in lieu of a former will, and was executed in his office and witnessed by A.C. Marsters and H.W. Miller. It has never been seen since its execution, so far as the record discloses, and Fitzhugh, Marsters, and Miller are the only persons who know anything about its deposition. There is an apparent conflict in their testimony as to whether it was left with Fitzhugh by McCoy after it was executed, or taken away by him; but we are clearly of the opinion, from a great preponderance of the evidence, that when last seen it was in the possession of McCoy. Fitzhugh testifies that he does not know what was done with the will that McCoy took it with him when he left the office, and as the first will had been deposited in the bank he supposed the same was done with the second; that he, witness, kept all important papers such as deeds, wills, and mortgages, locked in a safe in his office to which no one had the combination but himself; that a few months after the will was executed he vacated his office and took all the papers from his safe to his residence, where they were at the time he testified, except such as he had delivered to parties entitled thereto; that he had made diligent search among his papers for the McCoy will, and could not find it, and is satisfied he never had the will after it was executed; that some time before McCoy's death Denning, the husband of petitioner, told him that McCoy said his will was in his possession; that he thereupon made diligent search among his papers but could not find it, and sent word by Denning to McCoy to come to his house and he would convince him he did not have the will; that he met McCoy a short time afterwards, but he...