In re Wall's Will

• Decision Date: 24 November 1943
• Docket Number: 457.
• Parties: In re WALL'S WILL.
• Court: North Carolina Supreme Court

27 S.E.2d 728

223 N.C. 591

In re WALL'S WILL.

No. 457.

Supreme Court of North Carolina

November 24, 1943

This was a proceeding to probate in solemn form the will of Henry J. Wall. Upon the evidence offered there was verdict for propounders, and from judgment sustaining the will, caveators appealed.

Jones & Brassfield, William T. Hatch, and A.R. House, all of Raleigh, for caveators, appellants.

Banks Arendell and P.H. Wilson, both of Raleigh, for propounders appellees.

DEVIN, Justice.

It was not controverted that the paper writing propounded for probate was executed in manner and form sufficient to establish it as the last will and testament of the decedent. But its validity for that purpose was challenged by the caveators on the ground that the will had been executed in duplicate, one copy of which had been left in the custody of counsel and the other retained in possession by the testator, and that the copy left with counsel had been offered for probate while the duplicate copy which had been retained by the testator himself had not been produced or found. From this, it was contended, the presumption arose that the testator had destroyed it with intent to revoke it as his will, and that the revocation of the duplicate copy in his possession necessarily carried with it the revocation of the copy in the hands of his counsel. From an adverse judgment below the caveators bring the case here for review.

This is the first instance in which questions relating to the probate of a will executed in duplicate have been presented to this Court for decision. The facts were these: The draftsman of the will, Mr. J.W. Bunn, at the suggestion of the testator caused the will to be typewritten in duplicate--that is, by the use of carbon paper, two identically written papers were prepared. Both papers were signed by the testator and attested by two witnesses, at the same time, thus constituting them duplicate originals. One of the duplicates was left in the custody of Mr. Bunn, and the other duplicate was retained by the testator and carried to his home. Some ten months later the testator died. Mr. Bunn delivered the duplicate copy of the will left in his custody to the clerk for probate. The other duplicate copy which had been retained in possession by the testator was not produced and could not be found.

The rule generally followed by courts where the probate of duplicate wills has been considered is that where the duplicate copy retained by the testator is not produced or its absence satisfactorily accounted for, the other copy may not be admitted to probate as the testator's last will and testament, for the reason that the presumption of revocation would arise from proof of the possession of the paper by the testator before his death and its unaccounted for absence thereafter, and the revocation of the duplicate copy retained by the testator would necessarily constitute a revocation of the copy in the custody of another person. This seems to be the rule adopted by the New York courts. Crossman et al. v. Crossman et al., 95 N.Y. 145; Roche v. Nason, 185 N.Y. 128, 77 N.E. 1007; In re Schofield's Will, 72 Misc. 281, 129 N.Y.S. 190; In re Field's Will, 109 Misc. 409, 178 N.Y.S 778; In re Moore's Estate, 137 Misc. 522, 244 N.Y.S. 612, 613.

In the last case cited, In re Moore's Estate, supra, the will was executed in triplicate. After the testator's death two copies, which had been in the custody of others, were offered for probate, but the one retained by the testator was not found. There being no evidence of its existence at the time of his death, probate of the wills offered was denied. The Court said: "It is a fair presumption that a testator has destroyed his will with the intent to revoke it where it was last seen in his possession and cannot be found after his death."

The same reasoning was applied by the Supreme Court of Pennsylvania in Re Bates, 286 Pa. 583, 134 A. 513, 514, 48 A.L.R. 294, where it was held that the fact that the will was executed in duplicate did not alter the rule that a will left in the custody of the testator which cannot be found after his death is presumed to have been intentionally destroyed animo revocandi. It was also said in that case, "had the original been found, or had it been shown to have been lost or accidentally destroyed, there can be no doubt of the admissibility of the duplicate and its being entitled to probate as testator's will."

In the annotation on this subject in 48 A.L.R. 297, authorities are cited in support of the rule stated that where a testator destroys or is presumed to have destroyed with intent to revoke the copy of his duplicate will retained in his possession, in the absence of proof to the contrary, the duplicate in another's hands will be held revoked. The same principle is stated in 68 C.J. 822, with citation of a number of decisions from different jurisdictions in support.

In Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, 459 126 A.L.R. 1121, it was said: "The rule is practically unquestioned that in the absence of any evidence, as to circumstances of destruction, a presumption arises that a will which was in the custody of a testator, and which cannot be found at his death, was destroyed by him with the intention of revoking it." In order to revoke a will there must be both the physical act of destruction or cancellation and the intention that the act have this effect. Both must concur. The presumption, however, that the testator destroyed the paper with the intent to revoke it as his will is not one of law but of fact, and may be rebutted by evidence of facts and circumstances showing that its loss or destruction was not or could not have been due to the act of the testator or that of any other person by his direction and consent.

In Re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025, 1027, where the copy of a lost will was attempted to be probated, it was said, "The will not being found, there is a presumption of fact that it was destroyed by the testator animo revocandi," and that the burden was on the propounder "To show that the original will was lost, or had been destroyed otherwise than by the testatrix, or with her consent or procurement."

In Re Steinke's Will, 95 Wis. 121, 70 N.W. 61, 62, it was said that if it appeared that the will was last known in the possession of the testatrix and after her death could not be found "a prima facie presumption would arise that she had destroyed it, with the intention of revoking it,--a presumption subject to be rebutted by competent evidence." To the same effect is the holding In the Matter of Johnson's Will, 40 Conn. 587; In re Walsh's Estate, 196 Mich. 42, 163 N.W. 70, Ann.Cas.1918E, 217; McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570, 95 A.L.R. 711. "Whether or not the presumption of revocation is rebutted is a question for the jury. Thornton on Lost Wills, § 73, citing cases." Re Foerster's Estate, 177 Mich. 574, 585, 143 N.W. 616, 620. The rule that the presumption of revocation, which arises from the fact that the duplicate copy of the will retained by the testator cannot be found after death, is a rebuttable one, is illustrated by the case of Glockner v. Glockner, 263 Pa. 393, 106 A. 731, where the lost will was last seen in the possession of the testator, and evidence was offered that it was thereafter physically impossible for him to have destroyed the will or procured its destruction to the time of his death. It was held that the presumption that he destroyed it with intent to revoke it was rebutted, and judgment sustaining the will was affirmed. An even stronger case for the propounder was Managle v. Parker, 75 N.H. 139, 71 A. 637, 24 L.R.A.,N.S., 180, Ann.Cas.1912A, 269. There the will was executed in duplicate, and the testatrix herself destroyed the copy she had retained. But it was shown that she did so not for the purpose of revocation, but to appease some of her relatives, expressing the intention that the other copy in custody of another should continue to represent her will. Judgment sustaining the will was affirmed. A statement of this principle, as it applies to the probate of a will executed in duplicate, is also found in 2 Greenleaf on Evidence, sec. 682, from which we quote: "If the will was executed in duplicate, and the testator destroys one part, the inference generally is that he intended to revoke the will; but the strength of the presumption will depend much on the circumstances. Thus, if he destroys the only copy in his possession, an intent to revoke is very strongly to be presumed; but if he was possessed of both copies and destroys but one, it is weaker."

What is the nature and effect of the presumption of revocation to which these circumstances give rise? A distinction was drawn by Walker, J., speaking for the Court, in Cogdell v Wilmington & W.R.R., 132 N.C. 852, 44 S.E. 618, between a presumption and an inference. This was said in reference to the question whether one whose death was caused by the negligence of another was presumed to have exercised due care, or whether from the instinct of self-preservation an inference to that effect would arise. The Court held in that instance it was a presumption rather than an inference. This distinction is discussed in Annotation in 95 A.L.R. 162, where numerous cases on the subject are collected. However, the term presumption as connotating a presumption of law is generally used as indicative of a mandatory deduction which the law directs to be made, in the sense of a rule of law laid down by the Court, while a presumption of fact used in the sense of an inference is a deduction from the evidence, having its origin in the well recognized relation between certain facts in evidence and the ultimate question to be proven. Rose v. Tel....