Minor v. Guthrie

• Court: Kentucky Court of Appeals
• Writing for the Court: HOLT, J.
• Citation: Minor v. Guthrie, 4 S.W. 179 (Ky. Ct. App. 1887)
• Decision Date: 03 May 1887
• Parties: MINOR v. GUTHRIE.

4 S.W. 179

MINOR v. GUTHRIE.

Court of Appeals of Kentucky.

May 3, 1887

Appeal from circuit court, Marion county.

Thompson & McChord, for appellant.

Sam'l Avritt, for appellee.

HOLT J.

The paper in contest was duly executed by Josephine F. Guthrie as her will on June 12, 1875. The appellant, Marion F. Minor who is a grandchild of the deceased, contested its probate in the county court, but it was admitted to record; and this judgment was, upon appeal, affirmed by the circuit judge, who tried both the law and the facts of the case, and it is now here for consideration. The sole ground of contest is that the testator revoked the will by another one executed either in 1878 or 1879.

It appears by the testimony, which is brief, that at the time last named she executed another writing as her will, and which was left by her with the draughtsman. He proves its contents, and due execution as a will, and says that the last he knew of the paper the testatrix sent her son-in-law, as the latter said, and with whom she was then residing, for it, and that he gave it to him. The propounder of the paper in contest objected to all this testimony, and its competency is now in question. The loss of the writing last executed is in no way shown, or its absence explained. Indeed, no effort is made in this direction. This is perhaps attributable to the fact that, while the contestant receives but a trifling bequest under the will in contest, yet she was entirely cut off, as the oral testimony shows, by the latter paper.

The general rule is that if a will be traced to the hands of the maker, and cannot afterwards be found, it is to be presumed that it was destroyed by him animo revocandi. 1 Jarm. Wills, 119. The testimony does not, however, show clearly that the writing last executed came to the hands of the testatrix; but if it did, and the presumption therefrom arose that she destroyed it with the intention of revoking it, yet it, as the oral testimony shows, revoked all former wills, and its presumed destruction would not operate to revive the paper in contest. 1 Jarm. Wills, p. 125, note 1. This is also the statutory rule in this state. Gen. St c. 113, § 11.

The evidence, however, was not competent or sufficient to establish a revocation of the paper in contest as a will. As already mentioned, the destruction of the paper last executed was not shown, nor its absence explained. Hence the testimony relative...