Michell v. Low

Citations

• 213 Pa. 526
• 63 A. 246
• 1906 Pa. LEXIS 522

Syllabus

<p>Wills — Canceled will — Evidence—Probate—Execution—Contents of will— Subscribing witness.</p> <p>The contents of a lost will, or of a will which has been destroyed or canceled without the consent of the testator cannot be shown until its execution has been proved by the testimony of two witnesses.</p> <p>The testimony of a subscribing witness to a will alleged to have been destroyed without the consent of the testator is insufficient to establish the execution of the will where the witness is unable to fix the year or the season of the year in which the will was made, and it appears that he did not read the will, nor hear it read, did not know who was appointed executor, and his testimony showed that a legacy was mentioned in the paper which he witnessed which was not in the paper offered for probate.</p> <p>The testimony of a subscribing witness to a will alleged to have been destroyed without the consent of the testator, is insufficient to show the contents of the will, where it appears that the witness was a stenographer, that she had written a very large number of wills, that in no case, except the present, could she recall the contents of the instrument, that she had no data or written memoranda to refresh her memory, nor did she show any reason why she should have charged her memory with the different provisions of the will in suit, and it also appears that the witness was not corroborated by a single witness as to the alleged contents, and was contradicted as to other material points in the case.</p> <p>Where it is sought to establish a will alleged to have been destroyed without thé consent of the testator, the evidence must be positive and sufficient to overcome both the presumption of revocation by the testator, and the presumption of innocence on the part of the third person charged with destroying the will.</p>