The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1902-03-26

not be done by one witness alone. Each
must be able to testify to all the dispos-
ing parts OF the viii. There is no tnstru-
ment known TO law of a character more
sacred than a viii. Man has exhausted
his ingenuity in safe guarding the last
intentions of testators. Our statutes
require certain formalities as to execution
and proof and unless these solemn re-
quirements are substantially complied
with, the courts pronounce for intestacy.
And IN my judgment. this policy is sslu-
tary in the highest degree here. At times,
it must work hardship; but, IN the end, ii
is the only safe rule TO follow. When the
statutes require two witnesses to prove a
VIII, It cannot be done by one; nor even
by two witnesses can lost wiz be proved
when these witnesses materially differ as
do the witnesses here, in their testimony
as 20 the benef1cieries Such difference
makes in effect only one witness. The ex-
istence Of the will is not sufficiently
proved.
Coming now to the second branch Of
the case at bar and conceiing for the
purpose of argument that valid will
such as is alleged did exist, then has the
loss Of it been accounted for, Within the
provisions of our statutes. Here want
to remark that the general rules Of evil
very little application to the proof of lost
wills. The statutes control and in prac-
tice. so much severity of scrutiny is eXer-
cised that very few lost wills are ever
established. So far as the records show
this is the first case Of its kind in Sedg-
wick county. And so far as I know, there
is only one such case in all the reports Of
our supreme court. Differing circum-
stance of course require differing degrees
90, TO hal
that a viii is improperly suppressed, less
proof is required. Here the law raises no
presumption of intentional revocation.
But under all other circumstances, the
mere fact Of a viii being lost raises
clear presumDtive case Of intentional re-
vocation. Hence authorities cited relating
to the former class OF cases are not ap-
plicable TO the latter class of cases. When
death occurs and no VIII IS found, the law
says the decedent left no viii because it
presumes that a prudent man would leave
q document so important where it could
easily be found. If a viii once existed but
cannot be found at death. the law ex-
plains its absence by declaring the tesla
tor destroyed or revoked it before death;
and to overcome this legal presumption.
the courts require evidence, strong posi-
tive and convincing. It is TO be remem-
bered that this is not a case where the al
or and beyond the control Of the testatOr.
True the evidence shows It to have been
deposited with other papers in the Mt.
Hope bank but Mr.. Pierce also testifes
that Foster had easy access to his pa
pers and left and took them away at his
pleasure. Foster died in 1889. No wit
ness testifes that the alleged viii was
ever seen after 1892. Here is a period of
seven years Immediately prior to Fosters
A.
Of evidence that the win was in existence.
No one saw it after 1892. Foster was a
very ignorant man, able neither to read
nor write, and such people with property
interests, are naturally suspicious. It IS
conceivable, that at some period of these
seven years meditating in his lonely cab
in he may have considered his happiness
promoted by destroying this win. or he
may have been Influenced by other mo-
tives as many as the days he lived. Proof
of lost VIII is difficult everywhere; but
it is particularly difficult in Ohio and
Kansas. Section IS OF our wills act IS a
verbatim copy of the Ohio section and by
its terms. the Jurisdiction Of our courts
is limited 70 such wills as have been lost.
spoliated or destroyed Subsequent to the
death OF the alleged testator. If lost,
spoliated or destroyed Before or Prior 10
the death Of test2tor, our courts are alb
St4UltlN WITHOUT power 10 establish them,
no matter how clear and strong the proof.
In the matter Of Sinclair's viii. 1 Ohio
St 81, the supreme court of that state
in constituting this section used this lang
uage- Now, Z is beyond doubt. that tho
whole subjest Of lost. destroyed and spoil
lated wills was before the general assem-
bly, for its consideration: and that. rs ex-
pTessly as language could Go, they con-
fined their legislation 20 wills existing at
the decease OF the testator, and subse-
Guenty lost spolated or destroyed. If all
this legislative machinery was TO estab-
lish VIII lost after the death Of the tes-
tator why IS ii that all provision what
ever is omitted for the esta blishment OF /
proof and record Of viii lest before The
deccase OF the testdtor2 The answer is
obvious: The general assembly deemed It
either imDoltc, as opening the door 10
imposition and perjury. or unnecessary 10 f
permit wills lost or destroyed before the /
decease az The tcstator % be established. +
This court csDucr by construction. en- :
large the terms of q statute as Studiously F..
limited and circumscribeG. This reasoning f
seems 10 me conclusive Of the case at bar. /
= therefore, summing Up what has been said +
3 ooFe my conclusion SIS 1-That the all +
eyed VIII has nor been proved in the man +
o5r re1li-ed by die statutes - Il-rres- E
THAT Il the li.cg5d Viii ever existed. the F
evidence does nat show THAI il was LOST
Slistg ueDJ @ the deaih of the testator. /
Il IS therefore the Judgment Of the court 4
that the application az the petitioner lie /
dismissed AID au order VIII be entered (
On the -ia-a 0il - r1- established"