A spoliated will is a will that for some reason cannot be produced in the form that it was made by the testator. A will may become spoliated within the meaning of the statute in several different ways. That is, it may be lost or it may be destroyed. The proceedings authorizing such a will to be probated are strictly statutory and before a Probate Court can establish such a will the requirements of the statute must have been complied with. Considering the dangers that surround such a proceeding, the Court should proceed with great caution.'

1 Davis vs. Sigourney, 8 Metc. (Mass.) 487; Matter of Johnson, 40 Conn. 587.

See In re Murray Estate, 63 Bull. 81; 20 N. P. 305.

In many respects a spoliated and revoked will are similar, but they differ vitally in this, that a revoked will is a destruction or annulling of the instrument by the testator. While a spoliated will is one that in the mind of the testator exists as it did when it was finally executed. Our statute has some marked characteristics in reference to the probating of such wills, which must be closely observed in such proceedings.2

§ 1135. Wills when lost or destroyed may be admitted to probate. "The probate court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated, or destroyed, subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, and it can not be produced in court in as full, ample, and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate." [R. S. § 5944.]3

§ 1136. Must have been a will.

The first essential feature in the establishment of a spoliated will is proof that there was a will, and that it had a legal existence at the time of the death of the testator. "The existence will not be presumed from the fact that it was seen shortly before testator's death, nor is it proved by a declaration of the testator, made seven months before his death, that he had made a will, for this does not suffice to rebut the presumption of destruction with intent to revoke, which arises from the fact that no will could be found after diligent search, made soon after death." The burden of proof is on the proponent to show either the existence of the will at testator's death or its subsequent

4

2 Page on Wills, § 347, p. 420.

3 § 10543 G. C.

Chancery Courts never had jurisdiction in Ohio. Morningstar vsSelby, 15 O. 345.

4 Collyer vs. Collyer, 4 Dem. 53, aff. 110 N. Y. 481. See Matter of Marsh, 45 Hun, 107.

The Probate Court has exclusive jurisdiction.

destruction.5 Either fact may be proved by circumstantial evidence. Thus when it appears that the will, at the time of its execution, was placed by the testator in the hands of another person as custodian, who took charge of it, and locked it up in a trunk, and supposed it was there at the time of the testator's death, but, upon search after his death, it could not be found, its legal existence, at the time of the testator's death, is sufficiently shown."

But a lost will, not traced out of testator's possession, is presumed to have been revoked by him by destruction.' And when a will once known to exist and to have been in the custody of the testator, cannot be found after his death, the legal presumption is that it was destroyed by the testator with the intention of revoking it.

1137. Duly executed.

Another essential of a spoliated will is that the will which is sought to be probated as a spoliated will was at one time duly executed as the statute provides. These requisites must be proved as if the will were present. It cannot be done, it is true, by the same description of evidence in all respects, but some evidence sufficient to show a compliance with the statute, in all its provisions, must be given.

8

These facts are to be proved in the usual way, as other facts are required to be proved, to make them evidence in a Court of justice. The fact of testator's mental capacity must be shown; if not, although the existence of the will is proved, probate will be refused."

While the statute requires rules to be observed in the execution and publication of wills, which it does not prescribe in regard to the execution and delivery of other written instruments, the proof of the several acts so prescribed is the same as the proof

5 Perry vs. Perry, 21 N. Y. Supp. 133; McNally vs. Brown, 5 Redf. 372; In re Estate of Murray, 63 Bull. 81; 20 N. P. 305.

6 Schultz vs. Schultz, 35 N. Y. 653. See Cahill vs. Owens, 2 Gaz. 89.

6a Behrens vs. Behrens, 47 0. S.

323.

7 Idley vs. Bowen, 11 Wend. 227, aff. Edw. 148; Bulkley vs. Redmond, 2 Bradf. 281; Holland vs. Ferris, Id. 334; Redf. Law and Prac. 207.

8 Grant vs. Grant, 1 Sandf. Ch. 235; 343; Voorhees vs. Voorhees, 39 N. Y. 463.

9 Matter of Paine, 6 Dem. 361.

required to establish any other fact. The law lays dowr. no stubborn, inflexible rules in such cases, but accepts the best evidence that can be procured, adapted to the nature of human affairs, human infirmities and casualties, which tends with reasonable certainty to establish the facts in controversy.10

§ 1138. Not revoked at death of testator.

It will be observed that one of the essential conditions of the establishment of a will as a spoliated will is that the original will was not revoked at the time of the testator's death. From this follows what has been heretofore stated that the will must exist as a will at the time of testator's death," if he has destroyed it, then, as a matter of course, it can never be established as his will.12

§ 1139. Lost, spoliated or destroyed.

These are three terms which are used to describe the condition that the original instrument must be in, in order that secondary evidence may bé given to establish the instrument itself or its contents. They are in a certain sense synonymous, but there might be a discrimination between them. A lost will would be one that can not be found, and no explanation can be given as to its whereabouts. A destroyed will would be one for which a reason could be given for its non-production, and for its non-existence, by describing how it was put out of existence. A spoliated will might be a will which has been partly lost or partly destroyed by some agency other than the testator's.12a As to this fact of the will being lost, spoliated or destroyed, proof must be given of the exercise of reasonable diligence in the effort to procure the original. Generally it has been a sufficient excuse for the non-production of a document to trace it to the

See Cahill vs. Owens, 2 Gaz. 89, where it was shown that three days before the death of testator, that it was in his chest, that the keys were in possession of another, etc., it was admitted.

12 As to what will constitute revocation, § 1048 et seq.

The word "lost" means nonexistent, and must be given some of the signification of "spoliated" or "destroyed," although as a general rule it means when a thing has been duly searched for and can not be found. Gibson vs. Gibson, 6 C. C. (N.S.) 269; 25 O. C. 698; affirmed 72 O. S.

Where a will has been lost or destroyed before the death of the testator the law presumes he revoked it, and when he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became incapable by reason of insanity, to make a will. Cole vs. McClune, 88 O. S. 7.

No presumption arises that testator destroyed a will by failure to find it after her death, if her husband had the custody of it. In re Thompson, 59 Bull. 344; 16 N. P.

121.

12a Followed In re Murray's Est., 63 Bull. 33; 20 N. P. 305.

possession of one interested in retaining it, and who were he subpœnaed to produce it, would refuse to do so, on the ground that it would tend to criminate him.13

In civil cases it has been repeatedly held that where the paper or document wanted in evidence has been traced to the possession of a certain party, that party must be produced to prove its loss, and if beyond the jurisdiction of the Court, his testimony must be taken by deposition, or a reasonable excuse given for the failure. It must also appear that the party offering secondary evidence shows that he has exercised good faith and reasonable diligence in seeking for the primary evidence, and that he has explored with reasonable fidelity all sources of information the case would naturally suggest.'

14

But there is no universal rule as to the necessary foundation for the introduction of secondary evidence; but the judge must be reasonably satisfied that the document is lost, destroyed, or beyond the jurisdiction of the Court. When no probable motive appears for withholding the document, less evidence is required than under suspicious circumstances. 15

§ 1140. Lost, etc., subsequent to death of testator.*

Our statute has made an essential fact to be that the will must be in existence, not merely in contemplation of law, but actual, tangible existence at the time of the death of the testator. This question came before our Supreme Court shortly after the passage of the present wills act,' and there it was said: "If all this legislative machinery was to establish a will lost after the death of the testator, why is it that all provision whatever is omitted for the establishment of proof and record of a will lost before the decease of the testator? The answer is obvious.

13 Abbott's Trial Brief, § 452, citing United States vs. Reyburn, 31 U. S. (6 Pet.) 353, 366; 8 L. Ed. 424, 429; State vs. Kimbrough, 2 Dev. L. 431.

14 Simpson vs. Dall, 70 U. S. (3 Wall.) 460, 475; 18 L. Ed. 265, 267; Deaver vs. Rice, 2 Ire. L. 280; Parkins vs. Cobbet, 1 Car. & P. 282; Dickinson vs. Breeden, 25 Ill. 186; Turner vs. Yates, 57 U. S. (16 How.) 14; 14 L. Ed. 824; Bunch

vs. Hurst, 3 Desaus, Eq. 273; 5 Am. Dec. 551.

15 Jernigan vs. State, 81 Ala. 58; Haun vs. State, 13 Tex. App. 383; 44 Am. Rep. 706; Rice Am. Pro. Law, 254.

16 In the Matter of Sinclair's Will, 5 O. S. 291.

*Cited, Gibson vs. Gibson, 14 Dec. 331; affirmed 25 O. C. C. 698; 72 O. S. 677.