Thomas v. Thomas

• Court: Iowa Supreme Court
• Writing for the Court: BISHOP
• Citation: Thomas v. Thomas, 129 Iowa 159, 105 N.W. 403 (Iowa 1905)
• Decision Date: 14 December 1905
• Parties: THOMAS ET AL. v. THOMAS ET AL.

129 Iowa 159

105 N.W. 403

THOMAS ET AL.

v.THOMAS ET AL.

Supreme Court of Iowa.

Dec. 14, 1905.

Appeal from District Court, Harrison County; N. W. Macy, Judge.

Action in equity to establish a lost will, and for probate thereof. There was a decree dismissing the petition, and plaintiffs appeal. Affirmed.Bolter Bros. and Roadifer & Arthur, for appellants.

John P. Organ, for appellees.

BISHOP, J.

The fact that in the year 1901 Thomas Thomas, then living in Harrison county, this state, executed a will, is not seriously in dispute. And there is evidence of the contents of such will. Shortly thereafter said Thomas removed to the state of Missouri, where his wife, Elizabeth, and the principal devisee under the will, died in March, 1902. In March, 1903, Thomas returned to Harrison county, and while there died. When executed, the will was given into the custody of Elizabeth Thomas. After the death of Thomas Thomas thorough search was made for the will, and it could not be found.

It appearing that a will, conceded to have been executed, cannot be found after the death of the testator, the presumption arises that the same was destroyed by him animo revocandi. And the burden is upon the party seeking to establish the will to overcome such presumption by evidence strong, positive, and free from doubt. McCarn v. Rundall, 111 Iowa, 406, 82 N. W. 924;Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405;Stetson v. Stetson, 200 Ill. 601, 66 N. E. 262, 61 L. R. A. 258;Newell v. Homer, 120 Mass. 277; Thornton on Lost Wills, § 56. Having the rule, as thus expressed, in mind, we have read the evidence as presented by the instant record, and we cannot say that plaintiffs have sustained the burden assumed by them. No good purpose could be served by entering upon a discussion of the evidence in detail. It is sufficient to say that, apart from the fact that the will could not be found, there was the changed condition brought about by the death of the wife of the testator, to whom, as already stated, the principal portion of the estate was devised; there was the fact, made quite clear, that the feelings of the testator toward some of those who were named as legatees in the will had undergone a change; and there was proven statements or declarations, made by the testator, indicative of a purpose, with reference to his estate, inconsistent with the terms of the will. As against these, plaintiffs went no farther than to offer proof of some...