— Dissenting.
I do not concur in the opinion of the majority of the court. A long and careful study of this case convinces me that the instrument purporting to be the last will and testament of Maud Gammans can not properly be admitted to probate under the laws of this state; and notwithstanding the high respect in which I hold the author of the opinion and those of my associates who have concurred with him, I regard it my duty not only to file my dissent but to discuss somewhat in detail the reasons which compel me to view the matter from an entirely different standpoint.
*207This case is of great importance. Not only is a very substantial fortune at stake, but two questions of law are involved, one of which has never been before this court, the other never directly passed upon. We are called upon to decide for the first time under what conditions a loose leaf will may be given effect. We are also to determine the requirements which permit incorporating by reference documents not directly made a part of a will. These are questions not to be lightly passed over. Upon the decision may depend the future distribution of estates in which property rights more extensive than those in issue in a hundred ordinary lawsuits are to be adjusted. Such a situation compels the exercise of meticulous care.
It is, of course, the purpose of courts of probate to give effect to the expressed desires of those who attempt to make testamentary disposition of their property, whenever it is possible to do so without transgressing legal limitations. At the outset of this case, the court is confronted with the proposition that there is no way in which this testatrix’s apparent and definitely expressed plan for the disposal of her property can be carried out. Courts may be justified in straining the law when the result reached is that effect is given to the wishes of a deceased person, but there is no excuse for doing so when that result can not possibly be reached.
The documents presented here, and in which Miss Gammans undertook to dispose of her property, consisted of twenty-eight unattached sheets of note paper and a memorandum book. The bulk of her property is described in the loose sheets and a reference therein was intended to make the memorandum book a part thereof. This book was referred to in this language: “I direct my executors to distribute among my friends or carry out such directions as will be found in a little book marked A- on the inside cover which will be found with my will” (signed) Maud Gammans.
A little book marked on the inside cover A- was found with the loose sheets, after her death, in an unsealed envelope which in turn was enclosed in a sealed envelope. The book contained bequests to twenty-nine persons, among whom were two of the attesting witnesses to the alleged will. If the book could properly be incorporated in the will, probate must therefore be refused.
*208■ The opinion rejects the book and I agree with the conclusion of the majority of the court in that respect. I do not find, however, any “internal evidence” in the book indicating that it was compiled after the execution of the will; nor is that necessary. The evidence clearly indicates that the book was in existence at that time. The burden was on those who sought its consideration as a part of the will to satisfy the court not only that it then existed but that its contents also then existed. They fail to sustain this burden. There are certain entries in the book from which such a conclusion might be drawn; there are also entries from which the opposite might be argued, but nothing which really aids materially in deciding the question. All that one can say is that the burden of proof is not sustained. The book goes out of the case on that point.
The sole remaining issue is whether or not there was presented to the court below sufficient evidence of certain essential requisites on which to base a finding that the twenty-eight sheets of paper offered for probate as the last will and testament of Miss Gammans were all present at the time of the signing of the page marked 28, in the form in which they now appear, and were executed by her as one instrument as and for her will.
On that proposition the burden of proof rests on the proponents of the will. There is no presumption of law or of fact in their favor. They must prove their case. ■
Loose leaf wills may be admitted to probate even in jurisdictions where statutes similar to those in this state safeguard the execution of wills ; but after an exhaustive examination of the authorities, we find no case in which such a will has been sustained unless one, at least, .of three conditions has been met — either the various sheets were physically attached, or connected by their internal sense by coherence or- adaptation of parts, or identified by oral evidence as being present at the time of execution.
These conclusions of law are in accord with the majority opinion. It is also agreed that the sheets were not physically attached. The discussion therefore narrows to two simple propositions — ■ (1) Are the sheets connected by their internal sense, by coherence or adaptation of parts? (2) Are they identified by oral evidence as *209being present at the time of execution? The burden is on the proponents to establish one or both of these propositions.
There is absolutely no evidence of identification. The witnesses were agreed that aside from the sheet which bore the attestation clause, it was impossible to identify a single sheet. They saw a “pile of papers”; the papers “look like” or “looked exactly like” those offered for probate. In other words, they resembled the ordinary note paper in common use in every home in Maine.
Whether or not there was anything written on the sheets which they saw at the bank, they did not know. Whether those sheets wer e numbered or not, they did not know. Whether the sheets which Miss Gammans had in her possession in June, 1926, were or not the sheets which were found in the envelope after her death, they did not know and frankly said so.
There is left, then, nothing for the proponents excepting connection by the internal sense, by coherence or adaptation of parts, upon which to base the right to probate of the collection of loose leaves which they claim constitute the last will and testament of Maud Gammans.
So far as contents are concerned, the sheets are entirely disconnected. Each stands alone, sufficient unto itself, wholly unrelated to the remaining sheets. Each is signed at the bottom “Maud Gammans.” The only variance in this respect is that one of the sheets is also so signed in the middle of the page, two disconnected paragraphs appearing thereon.
Any sheet, or, in fact, all of them excepting those numbered one and twenty-eight, could be withdrawn, destroyed and substitutes inserted without affecting in any way the sense of continuity of the assembled document. The only possible evidence of connection is that the sheets are numbered one to twenty-eight.
The case of the proponents as set forth in the majority opinion rests on the proposition that the court below “may have been satisfied from the testimony and from an examination of the several sheets of paper, that the last page was numbered 28 at the time of execution and from the circumstances shown and internal evidence, that the other pages also at the time of execution had already been numbered in consecutive order and by Miss Gammans.”
*210But there was no evidence that the last sheet was numbered twenty-eight at the time of execution and no evidence, external or internal, which could possibly aid the court in determining when the remaining sheets were numbered. Nor is there any intimation in the findings of fact by the trial judge that such a course of reasoning was followed.
An examination of the loose sheets indicates plainly that they were not all filled out at one time; nor were they all signed at one time; nor were the various sheets signed as they were filled out. In one instance the writing overrides the signature, showing very plainly that the sheet was signed and afterwards filled out. In brief, . the alleged will is a piece of patchwork.
The mere fact that the instrument was not compiled at one time is not, of itself, important but it emphasizes the burden which the proponents must sustain of proving that it was all written previous to the time of execution. The case is absolutely bare of evidence on this point. There is nothing from which one would be justified in forming a serious opinion as to whether or not any single sheet excepting that marked with the number twenty-eight was in existence when that sheet was signed. So far as evidence goes, the first twenty-seven sheets may all have been signed and filled out at any time during the two years that elapsed between the date of the signing and the date of Miss Gammans’ death.
The case stands then, unique in the history of loose leaf wills admitted to probate in jurisdictions where a statute such as ours governs, no physical connection of the parts, no coherence or continuity of thought to join together the separated portions and no pretense even of identifying a single sheet save that which bore upon it the attestation clause alone. To permit the probate of such a will, to even entitle this collection of disjointed, disconnected fragments, a will, is to do violence to all precedent and to open wide the door of opportunity to fraud.
The majority opinion stresses the proposition that the presiding Justice below found for the proponents and reiterates the statement frequently appearing in our reports in connection with equity appeals and cases coming to this court on exceptions from the *211Supreme Court of Probate that if there is “any” evidence in support of the court’s finding, it must stand.
The impression is given that when a judge becomes a trier of fact, his decision stands on a higher plane than that of a jury exercising like authority. I do not regard this as the correct view. It has neither logical nor historical basis. Findings of fact by triers of fact should only be set aside when they are unsupported by evidence or are founded on a misconstruction of evidence or on a plain misapprehension of its effect and probative force.
The word “any” is misleading. The scintilla rule is not in force in this state. Whatever may be said of the decision below and, in fairness, it should be remembered that in the hurry and confusion of a nisi prius term, the presiding Justice was called upon to rule on questions never before submitted in this jurisdiction and rarely coming within the experience of any member of the Bar or Bench of the country, there seems no excuse here, after mature deliberation, to reach a result inconsistent with precedent and to base the reasoning which leads to that result upon one or two isolated bits of testimony which a careful reading of the record shows were entirely inconsistent with the evidence as a whole and inconsistent with the remaining statements of the witness from whose testimony these fragments are culled.
The proponents utterly failed to sustain the burden of proof on either of the propositions, one at least of which they were obliged to prove in order to entitle the documents presented to be admitted to probate as a will. Exceptions should be sustained.
Farrington, J. concurs in the above dissenting opinion.