In re De Groot's Will

presented, so far as this proceeding involves a construction of sections 2621^[1] and 1865^[2] of the Code of Civil Procedure, and section 42, art. 3, tit. 1, c. 6, p. 2548, Rev. St. (8th Ed.) In accordance with this decision, to entitle the proponents to a decree admitting the destroyed will to probate, it is necessary for them to prove an actual fraud against the testatrix in the destruction of her will. The case, therefore, turns upon the question whether this will was fraudulently destroyed in the life-time of the testatrix. It is conceded that the will was, in fact, destroyed by Horatio St. John, the brother of the testatrix, in the presence of Coziah Fanning, a trained nurse, who was attending the testatrix in her last illness, and Maggie Burns, the servant of the family. This was done by burning the will in the kitchen stove on the afternoon of the same day on which the testatrix died a few hours later. In June, 1889, the testatrix, who was a widow lady of middle age, while in her usual health, wrote a holographic will, leaving the bulk of her property to Mr. Hodgkinson, a man much younger than herself, to whom she was engaged to be married. In the July following she became seriously ill, and, fearing that her holographic will might not be legally adequate to the fulfillment of her testamentary desires, sent for her lawyer, Mr. Maguire, on the 26th, and directed him to prepare her will in proper legal form, so to dispose of her property in the same manner as expressed in her holographic will, giving him the paper. The will was so prepared and executed on the same day, and the holographic will was then destroyed in her presence. This expression of testamentary intent could not have been more deliberate, decided, or careful. She died on the 31st day of July, five days later. It is impossible to harmonize the testimony of the nurse, Coziah Fanning, with that of the servant, Maggie Burns, as to the declaration of the testatrix in relation to the destruction of the will. The testimony of the servant, however, impresses me as being the more ingenuous. If the bent of the mind of the testatrix was as testified to by the nurse, I cannot comprehend why the testatrix did not destroy the will herself, or why the nurse did not communicate this wish of the testatrix to the brother, when he came a little later on that day, instead of waiting until the next day, and then imparting it to him by accident. The testatrix never lacked opportunity to destroy the will herself, and there seems to me to have been too much of stealth in and preparation for its destruction by others to make the act appear in the light of an open and above-board transaction. I am obliged to utterly disregard the testimony of the witness Horatio St. John, for the reason that it is so full of contradictions and improbabilities as to stamp it as unworthy of credence. While he is not an interested witness, so as to exclude his testimony under section 829 of the Code, the-only person who stands between him and such interest is his father, a feeble and decrepit old man. From the testimony of Maggie Burns, it appears that the testatrix thought the will was still in the box the morning of the day she died, and she had not changed her testamentary intent up to that time, or her sentiment of regard for Hodgkin-son. Later in the morning we find the box, in which the will was kept, in the hands of the wife of Horatio St. John. After this, early in the morning, St. John calls the nurse out of the room, and asks her to go with him and see him burn the will, and within a few hours before her death, and not in her presence, the will is burned in the kitchen stove. Ho explanation is even suggested as to what might have produced any change in the testamentary inten