"The proponent tried this lawsuit on the theory that the will was last seen in the hands of one of the beneficiaries, to-wit, one B. W. Logan; that it was caused to be placed in his hands at the instance and request of the testator. Therefore, it comes within the exception to the general rule which provides that the proponent must negative the revocation of the will in a contest, and that the burden shifts to the contestants to prove revocation."
Their main contention seems to be that the burden of proof generally never shifts from the party having the affirmative cause of action. To such interpretation of the law we agree. However, in this case the burden was upon the proponent to prove the written instrument to have been a copy of the original will and that the same when last seen was in the hands of a person other than the testator, unattended by any circumstances which cast suspicion upon it. When this was accomplished, then the lost will became subject to probate. Under such facts in the case the presumption is that the will was not revoked. When such circumstances prevail, the burden of proving revocation rests upon the contestants as set out in the case of Rape v. Cochran, Tex. Civ. App.217 S.W. 250, 251, writ of error refused, wherein the appellees were contestants in a lost will offered for probate, to-wit:
"We come, then, to the issue of the sufficiency of the evidence. In that connection the burden was upon appellees to prove that the will ofMrs. Cochran had been revoked. (Italics ours) This is true, for the reason that all authorities we have examined are in agreement in holding, when the lost will has been established, (1) that when the lost will was last seen in the possession of the testator the presumption is to be indulged that he destroyed it; and (2) when last seen in possession of some person other than the testator no such presumption arises. In the case cited it is declared that a lost will stands upon the same footing as one produced in court; that is to say, when its execution is shown, `unattended by any circumstances which cast suspicion upon it,' the presumption prevails that it was not revoked, if when last seen it was in the possession of some one other than the testator. The proof attending the execution of Mrs. Cochran's will was clear and convincing, and unattended by any circumstances in that respect. A different rule applies, of course, if last seen in the possession of the testator." *Page 216
In the instant case we have a copy of a will, the original of which was established by uncontradicted evidence to have been executed by W. W. Bowers, deceased. The court in his charge to the jury treated the instrument as such.
"Do you find from the evidence that W. W. Bowers destroyed, with the intent to revoke, the will dated November 11th, 1927, and offered in evidence as `proponent's exhibit No. 1?' Answer yes or no."
This issue would have properly placed the burden of proof upon the contestants, if it had used the phrase "a preponderance," but the court's instruction accompanying it necessitates a reversal of the case because it places the burden of proving revocation upon the proponent. Aschenbeck v. Aschenbeck, Tex. Civ. App. 62 S.W.2d 326, writ of error dismissed; Rape v. Cochran, supra; Schultz v. Schultz, 35 N.Y. 653, 91 Am.Dec. 88.
Contestants also challenge the majority opinion in holding that this will case should be determined by a final judgment, either probating or denying it from probate, on the grounds that:
"The opinions of the majority holding by this court in the instant case seem to hold that it is made a part of the public policy of this state to require that all wills left by decedents be probated, and hold it to be the duty of the courts as well as all persons having information of the making of a will by a decedent to present it or have it presented for probate, and, even where it cannot be found or accounted for, to press an application to the point of having a court or jury determine whether it may be probated. * * *"
Such construction does not properly interpret the opinion. What the opinion does hold in substance is that since all parties treated the lost instrument as having been executed by decedent with the formality and solemnity of a will and since it took on legal life by being filed for probate by a proper proponent, who later withdrew from the proceedings; since such will named several legatees and devisees who were not the contestants, and especially since the will itself provides for an additional executor to be appointed in the event the one named did not qualify; then and in that event, the opinion holds that the will should not be destroyed for the mere lack of a proponent. Of course, as contended by contestants, under some circumstances, the legatees and devisees may agree either with themselves, or with the heirs not to probate a will; no such agreement is involved here. The majority opinion further holds that these devisees and legatees should not be denied their interest in said estate merely because no proponent is available to proceed with its probate. The record does not reveal that any of the named legatees or devisees know the existence of said will. If the will is admitted to probate, then the probate court is authorized under the law to appoint an administrator with will annexed to take charge of the estate and notify the devisees and legatees of their interest in same. If the will is denied probate, then the estate is subject to the laws of descent and distribution.
The motions for rehearing of both appellant and appellee are overruled.