Dawson v. Smith

8 Del. 92

• Court: Superior Court of Delaware
• Decided: July 5, 1865
• Status: Published

Opinion

The Court, Gilpin C. J., charged the jury.

The question which they were to decide was whether the paper writing or instrument then before them, and purporting to be a will of Elizabeth Smith, deceased, made on the 30th of December 1852, was, or was not, her lastwill and testament. It had been proved, however, that another and later will had been duly made and executed by her in 1857, and on the day of its execution it was last seen in her own possession, so far as the testimony related to that point. She died on the 7th of March 1864, and since then diligent search had been made among her papers to find it, if possible, but it had not been found. The first will, the will of 1852 now before them, had also remained undiscovered and unpro. duced for a time after her death,but it had since been'found in the same condition in which it was made and formally executed at the time as her last will and testament, so far as the internal and intrinsic evidence of the instrument itself disclosed any thing in regard to it, without cancellation or alteration in any respect, and was now formally presented for probate and allowance as her last will and testament. It had been contended by the counsel on behalf of the parties contesting its admission to probate as such, that the facts proved in the case, owing to the peculiarity of them, afford a strong, if not a conclusive presumption, that the deceased, not only intended to, but did in fact-revoke the will in question, by the subsequent will so made and executed by her in 1857; whilst on the other side, it had been contended with equal earnestness and confidence that the presumption is just the reverse of that, and in as much as the latter will cannot possibly be found, it was our duty to infer and presume that the deceased afterward intentionally destroyed it with the view and for the sole and direct purpose of reviving and restoring the former, the one before them, as her last will and testament. But in regard to that matter the court was bound to say that it is a settled rule of law that whenever a second or subsequent will has been shown to have been executed and been traced to the possession of the deceased, and it cannot be found after his or her death, it is to be presumed that the maker has destroyed it with the intention of thus revoking it, and the jury should so consider it in the present case, unless there was countervailing .proof before them to rebut-that presumption ; for if there had been any proof before them of its destruction by accident, or by any other person without the consent or knowledge of the deceased, that would rebut it. Presuming then, as we are bound to do under the facts proved in the case, that the will of 1857 was afterward intentionally suppressed and destroyed by the deceased, the legal effect and necessary consequence of it would be, without mating any other, to leave the will of 1852 to stand as it originally stood before the mating of any other, and to become her last will and testament on her death.