Weber's Estate

Citations

• 268 Pa. 7
• 110 A. 785
• 1920 Pa. LEXIS 622

Syllabus

<p>Wills — Probate—Lost will — Torn will — Presumption of revocch lion — Burden of proof — Evidence—Secondary evidence.</p> <p>1. The proponent of a will alleged to have been lost, or destroyed, must in any event account for the nonproduction of the will, in order to lay the foundation for secondary evidence of its contents.</p> <p>2. On a rule for an issue devisavit vel non, the testimony of one witness offered by proponent to the effect that testator had declared to him that in cleaning out some papers he had accidentally torn a will previously executed, and that it would have to be rewritten, is insufficient to explain its nonproduction so as to serve as a foundation for secondary evidence of its contents.</p> <p>3. In such case, where it appears that the will had remained in the exclusive custody of testator from the time it was made until the time when he told the witness that he had torn it, and there is no testimony that it had ever passed out of the control of testator to another, the declaration of testator cannot be construed into an admission that he had himself destroyed the will and made its production impossible, when all he asserted was that he had torn it. The presumption arises from continued possession and nonproduction after his death that testator had himself destroyed it animo revocandi, and the burden of overcoming this presumption rests on the proponent.</p>