#### Appling v. Eades’s Adm’r & als.

November, 1844,

Bichinond.

(Absent Bbooke, J.)

Wills—Disappearance—Presumption.*—A person having made a will, which lie bad In bis possession ; and on bis death, tbe will not being found; In the absence of all proof that be, or any other person, bad destroyed It, It Is to be presumed to have been destroyed by himself.

This is a bill filed by the appellant Austin M. Appling, against the administrator, heirs, and next of kin, of Abraham Eades, for the purpose of setting up the last will and testament of the said Eades; which it was alleged, had been duly executed in his lifetime; and by which, after giving several legacies among his next of kin, he gave the residue of his estate, real and personal, to the appellant.

There was proof that Abraham Eades had, some years before his death, written a will, which was attested by four witnesses; by which he had given legacies to his surviving brothers and sisters, and one of his nephews, and had left the residue of his estate to Austin M. Appling. There was also proof of declarations of Eades, up to a short period before his death, that he had a will; but there was no satisfactory proof that he had a will at the time of his death, or that it had been '-'destroyed previous to that time; and therefore the case turned upon the question, whether it was to be presumed that the will was destroyed by himself, or had been casually lost or mislaid, or destroyed by a third person.

The court below, upon the hearing, dismissed the bill; and the plaintiff applied for, and obtained an appeal to this court.

*118C. & G. N. Johnson, for the appellant.

A subsisting will can only be revoked in the modes prescribed by the statute; and it being ascertained that there was a will, the law presumes that it is in existence, until it is shewn by satisfactory proof, that it has been lawfully revoked. Jackson v. Betts, 9 Cow. Rep. 208. It is said, indeed, by some of the authorities, that if the will is not found, it is presumed to be destroyed by the testator. 1 Williams on Fx’ors 77. But these authorities are, obviously, looking to the presumption between the testator’s having destroyed the will, and some other person’s having fraudulently done it; and they leave out of view, entirely, the cases where the will is lost, or destroyed by accident. On this rule of presumption in the ecclesiastical courts, we refer the court to the case of Davis v. Davis, 2 Adams’s Rep. 206 ; 2 Eccl. Rep. 277, 279.

But whatever may be said of this rule of presumption in the ecclesiastical courts, the case relied upon by the counsel on the other side, shew that the doctrine is not recognized in Westminster Hall. There, they are bound by the statute of wills; in the other courts they are not thus bound ; and they will rely on slight circumstances to establish a revocation.

Stanard, for the appellees.

The appellant is attempting to set up a will which, he alleges, once existed, but which has not been found; and the question is, what *has become of it? The rule of law, and of common sense, is, that he whose will it was, must be presumed to have destroyed it. He only had a right to do it. In any other person, the act would have been a fraud, or a felony. The law upon this subject, is distinctly and satisfactorily stated in 2 Tuck. Com. 420; and the principles there announced, are fully sustained by the authorities cited in Williams on Ex’ors vol. 1, p. 77, and the cases of Colvin v. Frazier, 4 Eccl. Rep. 113, 140; and Moggridge v. Thackwell, 7 Ves. Rep. 36.

In this case, there is no proof of the existence of the will, for three years prior to the death of Eades, except his own declarations; and the above case of Colvin v. Frazier, and the case of Gibbens v. Cross, 2 Eccl. R. 377, shew that the declarations of the testator are not to be relied upon to rebut the presumption that the testator had destroyed the will.

As to the case cited from Cowen, the facts of that case did not render it necessary for the court to lay down the proposition there stated; there were strong facts leading to the conclusion that the testator had not destroyed the will; the proposition is not sustained by the authorities cited in its support; and .a reference to the judgment of the court in the same case, as it is reported in 6 Cow. Rep. 377, will shew that it is not entitled to any weight, in the consideration of this question.

*

Wills—Disappearance—Presumption.—In Shacklett v. Roller, 97 Va. 640. 34 S. E. Rep. 492, it is said: “ Where it appears that a person has made a will which cannot be found after bis death, tbe presumption is that it was destroyed by tbe testator *animo revoeandi.*This is especially true where tbe will is traced to bis possession, and never traced out of it. *Appling ¶. Eades, 1 Gratl. 286;*2 Tucker’s Com. 420; 1 Williams on Ex’ors (6th Am. Ed.) 195; Lawson v. Morrison, 2 Am. Lead. Cases 611: Thornton on Wills, sec. 56.” See, in accord, citing tbe principal case, Southworth v. Adams, 22 Fed. Cas. 841.

By the court.

Affirm the decree.