matters to be of equitable cognizance and that relief must be sought in a court of chancery.80 The weight of authority, however, appears to be that a grant of general probate jurisdiction includes authority over the probate of lost or destroyed wills.81

If the statute prescribes the procedure for the probating of a lost or destroyed will, its requirements must be followed. If such probate is limited to certain cases, the petition must set forth the facts showing it is a case within the statute.82 Otherwise a lost or destroyed will is admitted to probate according to the established procedure of the court to which it is presented, the proponent setting forth a copy of the will in his petition. The proof of the execution of the will and of its contents, of course, vary from the usual evidence submitted.

§ 1306. Proof That Lost or Destroyed Will Had Not Been Revoked.

A will that is conceded to have been duly executed but which was known not to have been in the testator's hands and which can not be found after his death, is not presumed to have been revoked. If the presumption of revocation is disproved, the contents of a will which has been lost and can not be produced may be proved by secondary evidence such as a draft or a copy thereof, or by oral testimony. It may even be proved in part by an

80 Buchannan V. Matlock, 8 Humph. (Tenn.) 390, 47 Am. Dec. 622; Shacklett v. Roller, 97 Va. 639, 34 S. E. 492; Hall v. Allen, 31 Wis. 691.

81 McBeth v. McBeth, 11 Ala. 596; Ponce v. Underwood, 55 Ga. 601; Davis v. Sigourney, 8 Metc. (49 Mass.) 487; Ewing v. Mc

Intyre, 133 Mich. 459, 95 N. W. 540; Morningstar v. Selby, 15 Ohio 345, 45 Am. Dec. 579; Adams v. Adams, 22 Vt. 50.

82 Jones v. Casler, 139 Ind. 382, 47 Am. St. Rep. 274, 38 N. E. 812; Harris v. Harris, 10 Wash, 555, 39 Pac. 148.

interested witness and declarations of the testator are admissible to prove the dispositions made in the other portion. If its contents can not be ascertained so that there is no evidence that thereby former wills were revoked, it will be rejected and former will be entitled to probate.83

If the will is shown to have been in the testator's possession and can not be found after his death, in the absence of evidence to the contrary it will be presumed to have been revoked.84 The presumption of revocation, however, may be overcome by strong and positive evidence. 85 Thus if the testator did not have possession of the will and it is shown that he did not have access to it

83 See § 551.

84 Eckersley v. Platt, L. R. 1 Pro. & Div. 281; Finch v. Finch, L. R. 1 P. & D. 371; Atkinson v. Morris, (1897) P. 40; Allan v. Morrison, (1900) A. C. 604; Snider v. Burks, 84 Ala. 53, 4 So. 225; Scott v. Maddox, 113 Ga. 795, 84 Am. St. Rep. 263, 39 S. E. 500; Stetson v. Stetson, 200 Ill. 601, 61 L. R. A. 258, 66 N. E. 262; Kern v. Kern, 154 Ind. 29, 55 N. E. 1004; Cheever v. North, 106 Mich. 390, 58 Am. St. Rep. 499, 37 L. R. A. 561, 64 N. W. 455; In re Colbert's Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 Pac. 971, 80 Pac. 248; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 4 Ann. Cas. 306, 62 L. R. A. 383, 94 N. W. 705, 96 N. W. 151; Collyer v. Collyer, 110 N. Y. 481, 6 Am. St. Rep. 405, 18 N. E. 110; Cutler v. Cutler, 130 N. C. 1, 89 Am. St. Rep. 854, 57 L. R. A. 209, 40 S. E. 689.

Where a will, conceded to have been executed by the testator, can not be found after his death, the presumption of revocation prevails. Statements made by testa tor shortly before his death that he had kept the will, and evidence that on his deathbed he made an effort to draft a new will but was mentally and physically unable to do so, as opposed to evidence that his feelings toward the principal beneficiaries had undergone change and the testator had made declarations inconsistent with the will, do not rebut the presumption of revocation.-Thomas v. Thomas, 129 Iowa 159, 105 N. W. 403.

a

85 McCarn v. Rundall, 111 Iowa 406, 82 N. W. 924; Thomas v. Thomas, 129 Iowa 159, 105 N. W. 403; Newell v. Homer, 120 Mass. 277; Collyer v. Collyer, 110 N. Y. 481, 6 Am. St. Rep. 405, 18 N. E. 110; In re Kennedy's Will, 30 Misc. Rep. 1, 62 N. Y. Supp. 1011.

after its execution, the presumption is rebutted.86 Likewise the presumption may be overcome by showing that at the time the testator is presumed to or could have destroyed the will, he was mentally incompetent to revoke it, but the evidence should show that the will was in existence at the time that he became insane.87

There is a conflict of authority as to whether the oral or written declarations of a testator are admissible to show the revocation or non-revocation of a will known to have been in existence prior to his death but not thereafter found. In England it has been held that subsequent declarations are admissible to rebut the presumption of revocation, but not to prove it.88 In the United States the weight of authority is that declarations of the testator in connection with other evidence are admissible to rebut the presumption that he had revoked his will.89

86 Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88.

87 Goods of Shaw, 1 Curt. 905; Brunt v. Brunt, L. R. 3 Pro. Div. 37; Rich v. Gilkey, 73 Me. 595; Idley v. Bowen, 11 Wend. (N. Y.) 227; Matter of Forman's Will, 54 Barb. (N. Y.) 274; Shacklett v. Roller, 97 Va. 639, 34 S. E. 492.

88 See 548; Podmore v. Whatton, 3 Sw. & Tr. 449; Goods of Barber, L. R. 1 P. & D. 267; Finch V. Finch, L. R. 1 P. & D. 371.

89 Law v. Law, 83 Ala. 432, 3 So. 752; Patterson v. Hickey, 32 Ga. 156; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Schnee v.

Schnee, 61 Kan. 643, 60 Pac. 738; In re Page, 118 Ill. 576, 59 Am. Rep. 395, 8 N. E. 852; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Tarbell v. Forbes, 177 Mass. 238, 58 N. E. 873; Ewing v. McIntyre, 141 Mich. 506, 104 N. W. 787; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 4 Ann. Cas. 306, 62 L. R. A. 383, 94 N. W. 705, 96 N. W. 151; Lane v. Hills, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393; Schultz v. Shultz, 35 N. Y. 653, 91 Am. Dec. 88; Gardner v. Gardner, 177 Pa. St. 218, 35 Atl. 558; Buchannan v. Anderson, 70 S. C. 454, 50 S. E. 12; Minkler v. Minkler's Estate, 14 Vt. 125; Gavitt v. Moulton, 119 Wis. 35, 96 N. W. 395.

§ 1307. Proof of Due Execution of Lost or Destroyed Wills.

In some states the proof of lost wills is regulated by statute. In California the court must take proof of the execution and validity of the will and establish the same, notice to interested parties to be given in the same manner as in case of proof of other wills. The statute applies to a will which has been mutilated or some of its provisions destroyed, as well as to one which has been lost.91

If the matter is covered by statute, the proof of a lost or destroyed will can be made only in the manner prescribed. The first essential in establishing such a will is to prove that it had been duly executed, and such proof is ordinarily made by the subscribing witnesses, as in other cases.92 Proof of handwriting is admissible when the subscribing witnesses can not be produced, if the persons testifying had seen the signatures to the will and recognized the same.93 Evidence of other witnesses who were present at the time of the execution and can testify to the facts, may be received.94

92 Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453; Scott v. Maddox, 113 Ga. 795, 84 Am. St. Rep. 263, 39 S. E. 500; In re Page, 118 Ill. 579, 59 Am. Rep. 395, 8 N. E. 852; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619.

93 Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619.

94 Jackson V. Betts, 6 Cow. (N. Y.) 377.

§ 1308. Proof of Contents of Lost or Destroyed Wills.

96

The contents of a lost or destroyed will may be proved by parol or secondary evidence, but the proof must be clear and satisfactory.95 Unless otherwise prescribed by statute, one witness, if unimpeached, is sufficient. The attorney or other person who drew the will may establish its contents.97 A copy or a memorandum of the will may be introduced.98 Declarations of the testator prior to and at the time of the execution of the will are admissible, and even when subsequent thereto, if in connection with and corroborative of other evidence.99

Although the statute require that the contents of a lost or destroyed will be proved by at least two credible witnesses,1 the witnesses need not repeat the exact language of the instrument. The general rule is that the substance is sufficient.3

95 Rhodes v. Vinson, 9 Gill (Md.) 169, 52 Am. Dec. 685; Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316; Estate of Kidder, 66 Cal. 487, 6 Pac. 326; In re Johnson's Will, 40 Conn. 587; In re Purdy's Will, 46 App. Div. 33, 61 N. Y. Supp. 430; Scoggins v. Turner, 98 N. C. 135, 3 S. E. 719.

96 Sugden v. Lord St. Leonards, L. R. 1 Pro. Div. 154; In re Page, 118 Ill. 579, 59 Am. Rep. 395, 8 N. E. 852; Wyckoff v. Wyckoff, 16 N. J. Eq. 401.

97 Ford v. Teagle, 62 Ind. 61; Inlow v. Hughes, 38 Ind. App. 375, 76 N. E. 763.

98 Ewing v. McIntyre, 141 Mich. 506, 104 N. W. 787.

See § 551.

99 Johnson v. Lyford, L. R. 1 P. & D. 546; In re Page, 118 Ill. 579, 59 Am. Rep. 395, 8 N. E. 852; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393; In re Valentine's Will, 93 Wis. 45, 67 N. W. 12.

Subsequent declarations are inadmissible. See Atkinson v. Morris, (1897) P. D. 40; Fuentes v. Gaines, 25 La. Ann. 85.

1 Cal. Code Civ. Pro., § 1339. 2 Estate of Camp, 134 Cal. 233, 66 Pac. 227.

8 Skeggs v. Horton, 82 Ala. 352, 2 So. 110; Anderson v. Irwin, 101 Ill. 411; Jones v. Casler, 139 Ind. 382, 47 Am. St. Rep. 274, 38 N. E. 812.