[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 Elizabeth Collyer died in Westchester county on the 4th day of March, 1883, possessed of a considerable estate. George B. Collyer, claiming that she had made a will devising and bequeathing all her estate to him, and appointing him the sole executor thereof, and alleging that the will had been fraudulently destroyed, instituted this proceeding in the Surrogate's Court, under section 2621 of the Code, to establish the will. The administrator and next of kin and heirs of the deceased were made parties to the proceeding and they opposed and contested probate of the will.
The petitioner, George B. Collyer, gave evidence tending to show that in 1863 the deceased made such a will as he claims; that she left the will in the custody of the lawyer who drew it until about the year 1877, when she took the will into her own possession and soon thereafter exhibited a folded paper which she claimed was her will. Witnesses were called on behalf of the petitioner, who testified to declarations made by the deceased at various times, but not later than seven months prior to her decease, to the effect that she had made a will giving all her estate to her brother George; and witnesses were called, on behalf of the contestants, who testified to declarations made by her in the years 1882 and 1883, the last in February of the latter year, to the effect that she was displeased with the treatment received by her from her brother George; that she had changed her intention in reference to him and had destroyed her will.
Upon all the evidence the surrogate found, as matter of fact, that there was a want of sufficient legal proof that the deceased ever executed a will; that there was a want of sufficient legal proof of the contents of any will; that at the time of her death she left no will in existence, and that no will of her's was fraudulently destroyed in her lifetime; and he held, as *Page 485 matter of law, that the alleged will should not be established or admitted to probate as a lost or destroyed will, and that the deceased died intestate.
The decision of the surrogate was affirmed at the General Term upon the ground, as appears from the opinion there pronounced, that there was not sufficient proof that the alleged will was in existence at the time of the decease of Mrs. Collyer, or that it was fraudulently destroyed in her lifetime. Without passing upon the other grounds upon which the surrogate based his decision, we agree with the General Term. It is provided in the Revised Statutes (2 R.S., chap. 6, tit. 1, art. 3, § 42) as follows: "No will, except in the cases hereinafter mentioned, nor any part, shall be revoked or altered, otherwise than by some other will in writing or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself, or by another person in his presence, by his direction or consent; and when so done by another person the direction and consent of the testator and the fact of such injury or destruction shall be proved by at least two witnesses." The claim of the petitioner is that the will of Mrs. Collyer was not destroyed by herself, but by some other person without her knowledge or consent. This claim is wholly unsupported by proof. No witness was called who had seen the will since 1877, and there is no evidence whatever that the will was in existence during the last seven months of her life, and the most diligent search failed to disclose any trace of it after her death. The evidence simply shows that several of her next of kin were about her for a short time before her death and in her house afterward, and thus may have had opportunity to find and destroy the will. But all such persons were called as witnesses and positively denied any knowledge of the will or any interference therewith, and thus there was not enough evidence even to *Page 486 raise a fair suspicion that the will had been fraudulently destroyed.
There is no direct proof that Mrs. Collyer destroyed her will. But the proof that the will was not found after her death is sufficient proof that she destroyed it animo revocandi. When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof. (Betts v. Jackson, 6 Wend. 173;Knapp v. Knapp, 10 N.Y. 276; Schultz v. Schultz, 35 id. 653; Hatch v. Sigman, 1 Demarest, 519.) He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show, by facts and circumstances, that the will was actually, fraudulently destroyed. In Loxley v. Jackson (3 Phill. Rep. 126) the will was last seen in a small box in the bed-room of the deceased, but was not found after her death, and it was held that the presumption of law was, that the testatrix destroyed it animo revocandi, that the law did not presume fraud, and that the burden of proof was on the party claiming under the will. In Betts v. Jackson (supra), a will was duly executed and in the custody of the testator for five years afterward, and within ten months previous to his decease, but could not be found after his decease, and it was held that the legal presumption was that the testator had destroyed it animorevocandi, although it appeared that within a fortnight before his death he applied to a scrivener, who had drawn a codicil, to draw another codicil to his will, which, however, was not drawn, nor was the will at the time produced to the scrivener. InKnapp v. Knapp (supra) it was held that proof that a will, executed by a deceased person, was said by him, a month previous to his death, to be in his possession, in a certain desk at his house; that he was then very aged and feeble; that his housekeeper was a daughter having an interest adverse to the *Page 487 will, and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator's death, or of a fraudulent destruction in his lifetime, to authorize parol proof of its contents. The authorities are uniform and no further citations are needed.
As the evidence on the part of the petitioner wholly failed to make out his case, he was not harmed by any of the evidence offered and received on behalf of the contestants to which he makes objections, and such objections need not, therefore, be considered.
The surrogate, in his decree, allowed costs against the petitioner, personally, to the several contestants; and he complains of this, relying for his protection upon subdivision 3 of section 2558 of the Code, which is as follows: "When the decree is made upon a contested application for probate or revocation of probate of a will, costs payable out of the estate or otherwise shall not be allowed to an unsuccessful contestant of the will, unless he is a special guardian for an infant, appointed by the surrogate, or is named as an executor in a paper proposed by him in good faith as the last will of the decedent." That provision plainly relates to an unsuccessful contestant of a will, and has no concern whatever with a proponent of a will. The petitioner sought to establish a will in which he was the sole beneficiary, and, by the same section, the surrogate was clothed with discretion, not reviewable here, to award costs against him personally in favor of one or all of the contestants.
Our conclusion, therefore, is that the judgment appealed from should be affirmed, with one bill of costs to the respondents.
All concur.
Judgment affirmed. *Page 488