The herald., 1894-12-13

made arose during the prosr. 9, of the
trial and was argued at length. The
con,lusion then reached was that the
| provisions OF section 1889 9. @. P. were
intended to apply only 10 the PROBATE OF
last or destroyed Wills. That this in
tent was made manifest by AN inspec .
tion OF the head note Of the article in
which the section 10 found, VIZ: Pro-
bate OF Lost or Destroyed Wills, such
head note being part OF the statute
lin ting aud defnins the section !;
(ShaTon va. Sharon, as Cal. Is, ex parte
Kohler, "A Cal. S9;l and also iolloweh
| necessarily from the rule OF sec ion 1907
OF the civil code that the revocation o! n
second will does not revoke prior will
revoked by il. To hold otherwise would
| be to hold that if a tsstator should
make will expressly revoking
q prior will, and should then revoks
such second will by burning it, such
revocation OF the second will would.
notwiths standing said section 1907. civil
code, says it shalt not operate to revive
the prior will, because it could not bs
alleged or proven that the second will
was in existence at the death OF the tos-
tator, or was fraudulentlv destroyed in
his liietims. Toe authorities cited in
support OF this position were examined
before, except Stickney vs.. Hammond.
l3S Mass 49, and Sswall vs Robbins,
l39 Mass, l64; and those cases do not
overturn the rules OF Wallis VS.. Wallis,
Ia Mass, $40, cited in the opinion fled
herein on October 2, 1894. n timing was
said in the argument upon this motion
changing the views expressed in tina.
opinion. Nor do / INK that the other
b. kk,e
the finding that the will OF 1881 was re-
voked by the will OF 1884 lie inconclusive,
becauss there ia no finding that at the
time OF the execution OF the will OF 1884
the deceased was of sound mind, 10
tenable. 1t is. OF course. true that il
the deceased was of unsound mind at
the time of tina execution OF the will Of
1854. that will did not revoke the will
oil 1881. But there is no issue raised by
the pleadinss respecting her mental ca
pacity 1t that tins, and it wi not
he presumed that her mind was
unsound. 1t WAS for the propon-
ent to raise that issue by her
answer. IL is legal presumption
that every person is OF sound m ind, an
when right depends upon TIL, con
dition or staiu, OF person 1t Is inclm
bent upon him who denies the right to
allege and prove that the condition or
status is other aud different from what
the law would presume to bs in the
absence of allegation and proof. The
logic OF the ruls which required the
contestants to alleIe and provs that the
deceased was o. ulaound mind at the
tlms of the execution of The tesla
IN ,ntary paper Oh June g. 1885 would,
think, require the p'oponent 10 allege
and prove tlat the deceased was Of un.
sound mind St the time Of the execution
OF the Parliamentary p per OF 1854 There
being no such issue raised Nv ,hs Plead.
ings, il could not te submitted to the
Try. The conclusions 10 be drawn from |
the verdict rendered. are that the will !
OF 1881 wsl revoke by the will OF 1881 /
and WAS no. revived or repubished by |
the codicil OF 1885. for the reason hu |
ut the time OF the eXecut on o. tni. |
codicil the deceased did no; po.sess tea
tamentsry capActy. 1t TO lows that tn
are entitled TO j I'd smen
upon the verdict. lis unnecessary t.
consider the question whether or n,
the changes and alterations made ny the
deceased in the will Of 1881 nulliGed it |
l; is ordered that jadgm IN. bs entsred
accordingly.