Pardee v. Kuster

• Decision Date: 15 April 1907
• Parties: PARDEE v. KUSTER ET AL
• Court: Wyoming Supreme Court

89 P. 572

15 Wyo. 368

PARDEE v. KUSTER ET AL

Supreme Court of Wyoming

April 15, 1907

Rehearing Denied October 7, 1907, Reported at: 15 Wyo. 368 at 381.

ERROR to the District Court, Albany County, HON. DAVID H. CRAIG Judge.

Action brought by Annie Pardee against Charles F. Kuster, Frederick Reinsberg, and Ludolph Abrams, as executor of the will of Charles Kuster, deceased, to establish an alleged lost will devising certain property to the plaintiff. Judgment was given for the defendants, and plaintiff prosecuted error.

Affirmed.

N. E Corthell, for plaintiff in error.

The presumption that a trial court is better able to judge between conflicting statements of witnesses than the appellate court (Rainsford v. Massengale, 5 Wyo. 1; Conway v. Merc. Co., 6 Wyo. 479) is not applicable to this case, nor the rule that a finding based on conflicting evidence will not be disturbed, for the reason that, (1) there is no substantial conflict between the witnesses; (2) nearly two-thirds of the evidence was documentary or by depositions. This court will weigh the evidence where the conflict is merely formal or unsubstantial. (Sherlock v. Leighton, 9 Wyo. 297.) And even in case of substantial conflict, the presumption in favor of the finding is correspondingly weakened when the evidence is largely in the form of depositions. (Yund v Bank, 14 Wyo. 81; Williams v. Miles (Neb.), 94 N.W. 710; Lavelle v. Corrigale, 86 Hun, 135; Thorn v. Frazer, 60 Tex. 259.) So, where the case rests upon written instead of oral evidence, it stands in the appellate court substantially as though a case of original jurisdiction. (Butler v. Hannah, 103 Ala. 481; Ritmaster v. Brisbane, 19 Colo. 371; Baker v. Rockabrand, 118 Ill. 365; Durham v. Coal Co., 22 Kan. 243; Martin v. Brown, 4 Minn. 282.) The legal effect of ascertained facts is a question of law. (Seibel v. Bath, 5 Wyo. 409.)

The deed relied on by plaintiff was testamentary in character and not a present conveyance. (De Bajligethy v. Johnson, 23 Tex. Civ. App. 272; Bunnel v. Nesbit, 89 Ga. 290; Turner v. Scott, 51 Pa. St. 126; Smith v. Holden, 58 Kan. 535; Kelly v. Richardson, 100 Ala. 534; Nichols v. Emory, 109 Cal. 323; Lavtenschlager Est., 80 Mich. 285; Dye v. Dye, 108 Ga. 741; Barnes v. Stephens, 107 Ga. 436; Crocker v. Smith, 94 Ala. 295; Robinson v. Brewster, 140 Ill. 649.) The question of revocation is controlled somewhat by statute. (R. S. 1899, Secs. 4569, 4595.)

Statutes on this subject represent independent efforts of states to codify or declare the common law. The differences among them are what might be expected from a study of the common law cases, which are not entirely harmonious in details. An illustration may be found in point of the number of witnesses required to establish the contents of a lost will. Some authorities say that two unexceptionable witnesses are necessary, who saw and read the will and remember the contents. (4 Burns Eccl. Law, 209; Hunter v. Gardenhire, 13 B. J. Lea, 58; 1 Woerner, Adm., Sec. 221.) Sometimes it is said that the will may be proved by one witness whose testimony is satisfactory. (Wychoff v. Wychoff, 1 C. E. Green, 401.) And corroborated declarations of the testator have been regarded as sufficient proof. (23 Ency. L., 151.) The various statutes are to be read as declaratory of the common law, according to the understanding of the Legislature. (1 Woerner, Adm., Sec. 221.)

Undoubtedly the reason of the conflict in the statutes lies largely in the minor differences in the authorities, which rendered legislation necessary to reduce the rules to certainty. It was not intended to abrogate remedies already existing; but rather to extend and advance the remedy. These statutes are, therefore, to be interpreted liberally. (Camp's Estate, 134 Cal. 233; Kitchens v. Kitchens, 39 Ga. 168; Lasance's Estate, 7 O. Dec., 246; Hook v. Pratt, 8 Hun, 102; Hall v. Gilbert, 31 Wis. 692.)

We are not to assume that the statute has erected an artificial barrier or placed a new and arbitrary requirement in the way of the procedure to set up a lost will. The requirement that it shall appear that the will was in existence at the death of the testator or was fraudulently destroyed in his lifetime is simply an expression in another form of the presumptions of fact so familiar in the common law cases. It is another way of saying that the will must be a last as well as a lost will. If the testator kept the will under his own control and it cannot be found after his death, the natural inference is that he changed his mind and destroyed it himself. Upon these facts alone it ought not to be allowed. If somebody else destroyed the will, or if it be merely lost, then the inference is quite the opposite. To show that somebody else destroyed it is to rebut the inference of the revocation and set up the contrary. Fraud in the ordinary or positive sense is not necessary to be shown. (Hatch v. Sigman, 1 Dem., 519; Brookie v. Partwood, 84 Ky. 265; Schultz v. Schultz, 35 N.Y. 653; Forbing v. Weber, 99 Ind. 588; Forman's Will, 54 Barb., 274.)

We do not claim a destruction of the testamentary deed. That is one of two possible inferences. If it was not destroyed by someone besides the testator, then it was in existence at his death, and, therefore, valid and effectual to pass title to the grantee. It is not essential to determine what became of the will. (Page v. Maxwell, 118 Ill. 576; Sugden v. Lord St. Leonards, L. R. 1 Pro. Div., 202; Poulton v. Poulton, 1 Sw. & Tr., 55; Gardner v. Gardner, 177 Pa. St. 218; Scoggins v. Turner, 98 N. C., 135.)

The presumption most frequent and important in this class of cases is that arising from the custody of the will. This presumption is invoked by the defendants and, we understand, the one relied upon by the trial court. It is sometimes said to be a presumption of law. The decided weight of authority, however, as well as the obvious reason of the rule, is that it is a presumption of fact merely. It is sometimes said that if it appear that the lost will was in the custody of the testator and cannot be found after his death, the presumption is that he himself destroyed it with revocatory intent; and that if the will is left in the custody of another the contrary presumption arises. Upon both these rules some conflict of authority exists, but, we think, they may be taken to be rules established by the weight of authority. In many cases the evidence does not clearly or conclusively show that the will was left in the exclusive custody of either testator or a third person. It may be left in their joint custody. The custody may have been varied and passed from one to another at different times, or there may be no testimony whatever as to whose custody the will was in. In such cases the presumptions are said to shift or vary, to increase or diminish in strength according to the circumstances and probabilities of the particular case. Very often, too, the character or strength of a presumption varies according as the evidence shows the custody to have been effective or ineffective to exclude any possibility of intervention by others. (Lane v. Hill, 68 N. H., 275; Spriggs v. Spriggs, L. R. 1 Prob. Div., 608; Hatson v. Hartley (O.), 74 N.E. 197.) The following cases are illustrative of the principles applicable to the circumstances of this case. (Whitley v. King, 112 E. C. L., 756; Frentes v. Gaines, 3 Woods C. C., 77; Gaines v. Chew, 2 How., 619; Gaines v. Hennen, 24 How., 553; New Orleans v. Christmas, 131 U.S. 191; Southworth v. Adams, 11 Bis., 256; Johnson's Will, 40 Conn. 587; Page v. Maxwell, 118 Ill. 576; McDonald v. McDonald, 142 Ind. 55; Steele v. Price, 5 B. Mon., 58; Ewing v. McIntyre (Mich.), 104 N.W. 787; Mann v. Balfour, 187 Mo. 290; Hildreth v. Schillinger, 10 N.J. Eq. 196; Jackson v. Betts, 6 Cow., 377; 9 Cow., 226; Cosgrove's Will, 65 N.Y.S. 570; Scoggins v. Furnam, 98 N. C., 135; Foster's Appeal, 87 Pa. St. 67; Gardener v. Gardener, 177 Pa. St. 218; Reeves v. Booth, 2 Mill. (S. C.), 334; McElroy v. Phink (Tex.), 76 S.W. 753; Harris v. Harris, 10 Wash. 555; In re Steinke's Will (Wis.), 70 N.W. 61.)

It appears from the testator's letter and his statements to numerous witnesses, that before his death he had manifested an affectionate regard for the plaintiff and solicitude for her welfare and a settled purpose not only to assist her during his life, but to provide for her after his death; that he had set apart the particular property in controversy to this end; that he executed a document designed to carry this purpose into effect and placed it with other like documents in a supposedly safe place; that he often referred to this purpose as an accomplished fact and expressed his understanding and belief in it as such up to the very last moments of his consciousness; that he never expressed to anyone a change of purpose, and that no indication or motive is apparent or conceivable of a change of purpose; that he was actuated in what he did by a positive feeling of kindness and affection for the plaintiff rather than a merely negative purpose to deprive his son of the property, having otherwise liberally provided for him. The whole plan and disposition of the estate was natural, reasonable and consistent with probability in every way.

H. V. S. Groesbeck, for defendants in error.

The plaintiff in error cannot recover upon her petition. A will and all codicils thereto are to be construed together as parts of one and the same instrument. (6 Ency. L. (2d Ed.) 179.) A codicil may have the effect of revoking a former one. (Id., 187.) An intention expressed by codicil to alter a will in one particular negatives by implication any purpose to alter in any other respect. (Id., 190-197.) Republishing one of two wills revokes the other one. (Crosbie v. MacDougal, 4...