The opinion of the Court was delivered by
Rogers, J.
This is a feigned issue to try the validity of a certain instrument of writing dated the 16th April 1837, purporting to be the last will and testament of Peter Shade, deceased.
The defendants deny it to be his last will, because they aver that the testator after that date, viz. on or about the 17th June 1837, made another will,, different in its dispositions, revoking all former wills, and that said will was destroyed, or suppressed by fraud. If the defendants can substantiate the truth of this statement, the paper writing of the- 16th April cannot be admitted to probate; and whether there was a subsequent instrument containing different and inconsistent dispositions from the former will, or a clause revoking all former wills, are the great questions in the cause.
Before entering into a particular examination of the case, I wish to premise that the poiixt is not whether the evidence was sufficiently strong to establish the making of a will subsequent to the 16th April, but (from the course which the court below have thought right to pursue) it is whether there was evidence given or withheld proper to be submitted to the jury for their decision.
[295] It is enacted in the Act of the 8th April 1833, 6th section, that every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express directions; and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall have no effect.
The 13th section provides that no will in writing concerning real estate shall be repealed, nor shall any devise or direction therein be altered otherwise than by some other will or codicil in writing declaring the same, executed and proved in the same manner as is hereinbefore provided; or by burning, cancelling, or obliterating or destroying the same by the testator himself, or by some one in his presence and by his express direction. And the 14th section makes the same provision respecting wills bequeathing personal property.
It is not alleged that the testator cancelled, obliterated or destroyed the first will. The defence rests on the first clause of the 13th section of the Act. In the construction of that clause it is conceded that an instrument purporting to be a last will and testament, must have the same attestation, &c. to operate as a revocation, as is requisite to give it validity as a will. But although a will must be proved regularly by two witnesses, yet circumstances may supply the want of one witness, when they go directly to the immediate act of disposition. Eyster v. Young, (3 Yeates 511); Reynolds v. Reynolds, (16 Serg. & Rawle 87); Miller v. Carothers, (6 Serg. & Rawle 215). It has also been ruled (and with these principles, as will be hereafter seen, we do not interfere) that the contents of such second will must in general be found, and the contents so found must appear to be inconsistent with the dispositions of the former will, to operate as a revocation; and that if part is inconsistent and part is consistent, the first will shall only be revoked pro tanto, and to the extent of these discordant dispositions. 3 Wilson 497; Cowp. 87; 7 Bro. P. C. 344. But it is not necessary (as I conceive) where the will is destroyed, and especially where it is suppressed or destroyed by fraud, to prove the precise facts in which the latter will so set up as a revocation of a former will differs from it. For if the jury find expressly, or infer from circumstances (which I shall show hereafter they may), that the dispositions made by the second will are inconsistent with the dispositions in the former, that is a sufficient ground to decide the latter will a revocation. And this seems to be the opinion of Mr Powell, in his Treatise on Devises, p. 519.
In conformity to the principles above stated, the plaintiff having given the ordinary proof of the execution of the first will, it is incumbent on the defendant, to sustain his case, to prove to the satisfaction of the jury the factum of a subsequent will, and that it was suppressed or destroyed by fraud. These preliminary points [296] being satisfactorily established, an inference will arise, as will be hereafter shown, that the first instrument was repealed or altered; and consequently the latter is a revocation of the former.
The points above indicated are the natural order in which the case should be viewed, for, it will be observed, if the defendants fail in sustaining either of the two first propositions, the third, which is a corollary from them, cannot arise.
1. As to the factum of a will subsequent in date to the writing of the 16th April 1837. It is admitted that a revoking will must be in writing, that it must be attested by two witnesses, or by one witness accompanied by proof of circumstances which go directly to the immediate act of disposition; and the first question to which the attention of the court and jury must be directed, is, have these indispensable requisites of the Act been complied with ? If the jury find against the defendants on this point, further inquiry is needless. And the first thing which strikes the mind is, that no person can examine the testimony without coming to the conclusion that .the testator made two, and but two wills, one on the 16th April 1837, the other a short time before or after that date. This is put beyond the possibility of doubt by the concurring testimony of Dr Klapp and Samuel Green, one a witness for the plaintiffs, the other for the defendants. The only conceivable difficulty which can arise is, whether the instrument which it is sought to set up as a revoking will, be subsequent or prior in date to the I6th April; and next, whether the witnesses refer to one and the same instrument of writing. Without stopping to inquire whether when a will is regularly attested one witness may prove its contents or the date of it, where the date becomes material, here we cannot fail to observe there are two witnesses, with a variety of circumstances to confirm their statements, who depose that the writing in question was executed on or about the 17th June 1837, and, of coui'se, subsequent to the will now in issue. For on this part of the case the jury will pay great attention to the testimony of Samuel Green and Susan Green, corroborated, as they unquestionably are, by strong and cogent motives which the testator had after the execution of his first will to make a different disposition of his property. The testimony (and I refer as well to the testimony rejected as that which was received) discloses this case. The testator, aged 70 years, lying helpless in bed in the extremity of sickness, believing he had serious cause of displeasure against a young and favourite child, on the 16th April 1837, some three or four months before his death, made his last will and testament, containing a devise to his second wife and to her daughter, who was a stronger to his blood, and also this item: “I consider that Maria Jones (his daughter by a former wife) has had her full share of my said estate in moneys improperly taken, moneys loaned, and property improperly taken.” That a misapprehension of improper conduct by his child was the operating cause of this [297] singular, and, may I not add, unparental clause, appears not only from the will itself, but from repeated declarations of the testator. For the defendants offered to prove that he repeatedly expressed his displeasure with his daughter, in relation, as the witness says, to her return of certain goods, saying, if they were not returned he would cut her off. It also appears that subsequently to the signing of the first will, a complete reconciliation took place between father and child, in pursuance of his repeated pledges to that effect, she having returned the property which was the cause of the father’s displeasure. This testimony adds great weight to the evidence of Green and wife on the point of time, for it suggests motives of the most powerful kind, operating with irresistible force on the heart of a parent, for an entire alteration in the previous disposition of his property. The testator’s estate was worth say $40,000, to be divided into five shares; consequently Maria’s portion, on a fair and just division, would amount to $8000; whereas by the will as it stood at the time she had regained the affections of her aged parent, she gets nothing. He bequeathed, it is true, to each of her five children the comparatively pitiful sums of $200. To repair this glaring injustice, we may reasonably presume, was one, among other reasons, for an alteration in his will. It renders the allegation that a subsequent will was made by the testator a most probable event. Indeed, a contrary supposition comports but little with the ordinary conduct of parents placed in similar circumstances.
But another reason suggests itself equally cogent. The will of the 16th April contains an imputation of dishonesty in his own child, a direct charge of embezzlement and fraud. In the full 'flow of returning affection, he must naturally be anxious to prevent so disgraceful a charge from going on the records of the county. This is a conclusion from which no parent will dissent, and it may account for the fact that he preferred executing a new will rather than making the necessary alteration by means of a codicil. In the one case he gets rid of an odious imputation; in the other he perpetuates it. But it is said there is some conflict in the testimony of Dr Klapp and Green and wife; but it will be for the jury to say whether this is not more fanciful than real, The only thing of which Dr Klapp appears to have been certain was, that he witnessed two wills. After having proved the first will, he says, “ To the best of my recollection I witnessed another will. It is impossible for me to recollect whether the will hereto annexed (meaning the will of the 16th April) marked (A), is the first or last will. Both wills were witnessed by me during the course of my visits in his last sickness. Of course I cannot say that the facts I have stated in relation to the acknowledgment of the will refer to the first one I witnessed or the last one. I cannot specify the time that elapsed between the' execution of the first and last will. I should suppose that the period of time may not [298] have been more than two or three weeks, and it may have been less.” Under the facts here disclosed, it will be for the jury to say what weight ought to be attached to this supposed discrepancy. It will be remembered that there is nothing more difficult to recollect than dates; and perhaps the jury may be inclined to rely more on the memory of Samuel and Susan Green than Dr. Klapp, as the former have something in aid of their recollection, whereas the latter has literally nothing. Besides, the precise date, except for purposes of identification, is totally immaterial; as the only matter of any consequence is whether the revoking will is subsequent in time to the execution of the instrument of writing offered for probate.
We will now notice the next subdivision of the factum of a subsequent will; that is to say, we will next inquire whether Dr Klapp and Samuel Green refer to the same instrument. It appears that the testator, at periods of time not far distant from each other, executed two wills, and we have not the least reason to believe he made more than two wills. Dr Klapp was a witness to two wills, and Samuel Green was a witness to one will. From this we arrive at the conclusion that as Dr Klapp was a witness to both wills, one in conjunction with John V. Tittermary, the will of 16th April, and there were but two wills, and Mr Green was a witness to one wi.ll only, they must have attested the same instrument. There was no other writing to which Dr Klapp could be a witness except the one attested by Green. Dr Klapp says neither of the wills was read over to him. He has no recollection of the first will being produced when the last was subscribed. He then adds, the testator, to the best of his recollection, assigned some reason for the making another will, the nature of which he does not recollect. This part of the testimony bears not only on this point, but the time of the factum of the revoking will; for the inquiry is pertinent, what motive could he have had so probable as that he felt it a duty to alter the unjust and unequal provisions of the will of the 16th April, obliterating, as far as he could, the cruel and as he was afterwards no doubt convinced unfounded aspersions on the character of an unoffending, or at any rate repentant child. A difference is also suggested in this, that Green states he was the first witness to the will of the 17th June, whereas Dr Klapp says, to the best of his recollection, he was the first witness to the second will, drawing an argument from this against the identity of the instrument. To this it may be replied that Dr Klapp testifies he cannot say that the facts stated by him in relation to the acknowledgment of the will refer to the first or the last will. By this it appears how confused and imperfect is his memory, confounding the one instrument with the other. Besides, it is not altogether improbable that this impression may be produced by a mistake as to the instrument; for, in truth, he was the first witness to the will of the 16th April. For these reasons we are of [299] the opinion there was evidence of the factum of a will subsequent in date to the will offered for probate; and consequently there was error in withdrawing this part of the case from the decision of the jury.
The factum of the will being established, another question, necessary to the defence, presents itself. Was the will so made destroyed or suppressed by fraud? This, which is peculiarly a question of fact, presupposes that a will was made by the testator after the date of the first will. The next inquiry then is, was the second will cancelled by the testator himself, or by some person in his presence and by his express direction? or was it destroyed or has it been suppressed by others, without his privity and consent? In the investigation of this point the first and most natural inquiry is, to whose custody and control was the paper committed? It is idle to say it was in the actual custody of the testator. The condition of his health and all the testimony are in opposition to this idea. It is in proof the first will, in which, be it remembered, Mrs Shade is a devisee, and her brother, Daniel R. Murphy, one of the executors, was in the possession of Mrs Shade or Daniel R. Murphy, or of both; and the jury will have the right, under the facts disclosed, to infer that the subsequent paper was committed to her care also. I do not say they are bound to make this inference, but they may infer it without doing any violence to the probabilities of the case. If a subsequent devise was made, and that, with the first, went into the custody of Mrs Shade or Mr Murphy, the next and most natural inquiry will be, what has become of it ? One of two things must have taken place. It was either cancelled by the testator, which he had an undoubted right to do, or it has been suppressed or destroyed by those to whose custody it was committed. The jury must choose between the one or the other of these alternatives. It is an undeniable principle, that while a will is in the possession of the testator, the presumption is that it has been cancelled by himself. But was this paper in the possession of the testator ? Practically it was not, for the evidence show's it was under the control and in the power of the wife, or of his executor.
But is it probable it was destroyed by the testator himself, or in his presence and by his express directions ? If it was, how easy to have proof of it! The absence of such proof is an argument against it. Besides, the very reasons which have been assigned for making a second will are those which make it so difficult to believe that he could have been induced to cancel it. The very supposition is a gross libel on his parental feelings, as there is no evidence, but directly the reverse, that anything afterwards occurred to alienate his affections from his erring but repentant child. He died, as is shown, in her arms. For these reasons and others which may be suggested, the jury may be of the opinion it was neither destroyed by him nor by his orders, or with his con[300] sent. If not cancelled by the testator, and there are strong grounds for believing it was not, we have but the other alternative, that it was destroyed or has been suppressed by those to whose custody it was committed, and whose interest it may have been to destroy it. If two wills have been traced into the lion’s den, it will be for the jury to say why it is but one came out of it. It is true, fraud is not presumed. It, however, does not require direct or positive proof. It may, and often is, inferred with great certainty from attending circumstances.
From the remarks which have been made, it will appear that we entirely differ from the court in their positive instruction given to the jury, that there is no evidence of fraud or spoliation, either as against the plaintiff or any one else. Without undertaking to express an opinion on the weight of it, we think there is testimony which should be submitted to the jury, and of which they alone are the legitimate judges.
But the court further instruct the jury, that if there had been evidence of these facts, that is, the factum of a subsequent will, and its destruction or spoliation by any person other than the testator himself, it would still be necessary to prove what the contents of the will alleged to be destroyed were, and to show that it was a revocation of this, in whole or in part, and in what particular it revokes this will. For this position the court relies on Morton v. Clark, (5 Rawle 235); Lawson v. Morrison, (2 Dall. 286); Sir Henry Killgrew’s Case, (Salk. 592); and Goodright v. Harwood, (3 Wils. 497, 2 Black. 937, and Comp. 87).
It is not denied that in the ordinary case of a disposing will lost or destroyed, and where there is no allegation of fraud, in addition to proof of the factum of the will, it is requisite to prove its contents; and this from necessity, for it is obvious it cannot operate as a disposition of the property without proof of its contents. So, if the instrument which was intended to be a will and not merely a-revocation, cannot operate as a will, it cannot, as appears from all the authorities, take effect as a revocation. But even this doctrine must be taken with some qualification; for a will, though rendered inoperative by extrinsic circumstances, may revoke a former will. Thus, if properly executed and attested to pass freehold lands according to the statute of Cha. 2, though it should be prevented from operating by the incapacity of the devisee or any other matter dehors the will, the former will is nevertheless revoked by it. So a will devising lands in fee to the heir at law, though void as to the purpose of a will, yet operates as a revocation if attested according to the statute. 1 Vez. Jun. 17; Ellis v. Smith, (8 Vez. Jun. 370); 4 Roll. Af. 615; 1 Roberts on Wills 199. With much more reason is it that where a will is rendered inoperative as a will by the fraud of a person interested in its destruction, it will nevertheless operate as a revocation. It is better, surely, that a person should die intestate, than that a [301] spoliator should be rewarded for his villany. So, in Harwood v. Goodright, (Cowp. 87, 3 Wils. 497); 7 Brow. P. C. 344, it is ruled that a subsequent will, though it be found to contain a different disposition from a former, if the particulars of that difference be unknown, is no revocation of such former will. These principles are all granted; but I have looked into the cases on this head, and in none of them was there proof of spoliation. In truth, many of them go on the legal presumption that the subsequent will was cancelled by the testator himself; and it is not denied that a former will is not revoked by a subsequent will afterwards cancelled by the testator. In none of these did the controlling principle of this case arise; for where there is evidence of spoliation, I deny that it is necessary to give express proof in what particulars the two wills differ or that there are inconsistent dispositions, to produce a revocation, thereby causing an intestacy. A contrary inference is plainly deducible from the cases cited by the court itself. It was evidently the opinion of the judges who ruled the case of Harwood v. Goodright, that if the jury had found a spoliation of the paper, it would have altered the case. Thus Lord Mansfield, in Harwood v. Goodright, (1 Cowp. 91), intimates that where there is spoliation the jury may presume inconsistent dispositions. Thus, he says, the jury might have had evidence to prove an inconsistent disposition, or circumstances to lay a fair foundation for presuming it to be so, as spoliation, or the like. But as no such circumstance appeared, the court ruled it was not a revocation. Had the defendant destroyed the second will, the judgment of the court in Harwood v. Goodright, we have reason to believe, would have been different. For Lord Mansfield, after stating the rule that a subsequent devise of lands must be inconsistent with a former devise of the same land, or the first will would stand as a good subsisting devise, observed, that it was not found that the second will was, in any particular, repugnant to or inconsistent with the first. Had the defendant destroyed the second will, he observes, there might have been good ground to presume such inconsistency or repugnancy, and the jury might have found the fact of revocation. And to the same effect are the remarks of Chancellor Walworth, in Betts v. Jackson, (6 Wend. 180). He observes, even when the exact contents of a will cannot be ascertained, if it has been suppressed or destroyed by a person interested in opposition thereto, the court or jury, in odium spoliatoris, will be authorized to presume many things as against the party who has been guilty of the fraudulent act.
If, therefore, on another trial the jury should find the factum of a subsequent will, and that this will was destroyed or withheld by fraud, they may, and, as I conceive, are bound to infer that the second will contained inconsistent dispositions with the first; nay more, in odium spoliatoris, that the second will contained a clause expressly revoking all former wills. In point of law it must be [302] regarded.as a will subsisting at the death of the testator, so as to operate as a revocation of all former devises. It is far better that there should be an intestacy than that a spoliator should be rewarded for his dishonesty. It is absurd to require strict proof of the contents of a will, so as to operate as a revocation, where it appears that -it has been destroyed by fraud. From the great anxiety which testators frequently feel to conceal the disposition of their estates, it would, in a majority of cases, be impossible to prove their exact contents.
In conclusion, I have to remark that I have examined the several bills of exception, and it seems to me that in every case the evidence ought to have been received. The evidence rejected by the court has a bearing more or less direct on the factum of the revoking will, as well as the imputed fraud in its destruction. On the whole case we are of the opinion the facts were improperly withdrawn from the jury, and that the judgment must be reversed and a venire de novo awarded.
Judgment reversed, and venire de novo awarded.