I dissent.
The leading opinion holds that because under our statute two witnesses are required to establish the contents of a lost or destroyed will for the purpose of probating it so that it may stand as the testator's last will effectively disposing of his property, two witnesses are likewise required to prove that it contained a clause revoking former wills, when it is sought, not to probate the instrument, but merely to show the revocation of a former will made by it. This position can be justified only upon the theory that a probate of the instrument is necessary in order that the clause of revocation contained in it be operative, since the code section requiring two witnesses to prove the contents of a lost instrument applies only to the probate of a will. But that the probate of an instrument of revocation is not necessary appears plainly from our code. Section 1292 of the Civil Code provides in terms that a will may be revoked by any instrument suitably executed, whether it be a will or not, and manifestly probate cannot be required of an instrument that is not a will. The section reads: "Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; . . ."
It is in fact conceded that if the instrument of revocation be not a will, the code section requiring two witnesses for proof of the contents of a lost will can have no application, but it is said that this is not true when the lost instrument is a will. But why should there be any difference? It is not sought in either case to prove the instrument as a will, but merely as a revocation, a very different thing, and the effect and operation of the instrument as being a revocation is the same, whether it be a will or not. *Page 790
There would be ground for making a difference if the effect and operation of a revocation contained in a will were dependent upon the will finally becoming effective and operative as the testator's last valid will. There is but one method of establishing an instrument as a decedent's last valid and operative will and that is the probating of it. If, therefore, the operation of a clause of revocation contained in a will were dependent upon the instrument appearing at the testator's death to be his last will, its probate would be necessary to show the revocation worked by it. But it is not the law of this state, or of the other states that have adopted the rule of the ecclesiastical courts, that the operation of a clause of revocation in a will is dependent upon the instrument continuing until the testator's death as his valid last will, unsuperseded and unrevoked. Section 1297 of the Civil Code provides just the contrary. It reads: "If, after making a will, the testator duly makes and executes a second will, the destruction, cancellation, or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is duly republished."
If the revocation of one will contained in a second is still effective, although the second will is in turn revoked, such revocation is certainly not dependent on the second will appearing to be the last will of the testator. Right here is where fundamentally, as I see it, the leading opinion is wrong. It takes the position, in spite of the code sections just quoted, that a revocatory clause in a will is ambulatory in effect like the disposing clauses of a will and is not effective instantaneously with execution. Thus it is said: "In order that the revoking clause in this lost and unrevoked will should be effective as such, it was necessary to establish that such clause was in her last will, and thus an effective part of her last will"; and again: "If the revoking clause of a will stands upon the same basis as the balance of the will, there could scarcely be room for doubt as to the foregoing proposition, but it is insisted that section 1297, Civil Code, declaring the result of the revocation of a revoking will, in effect provides that the revoking clause operates instantly upon the execution of the will containing *Page 791 it, and that for that reason its existence can be proved by any competent evidence, thereby establishing the fact that the prior will was revoked as of the date of the revoking will. This view finds support in the department opinion in Re Lones,108 Cal. 688, 690, [41 P. 771, 772]." Following the latter statement, the opinion then goes on to question the view expressed in Re Lones.
It is novel doctrine, indeed, that a formal revocation of a will, whether it be contained in a later will or in an instrument not a will, does not operate upon the execution of the instrument, but is ambulatory in effect in those jurisdictions which, like ours, have adopted the rule of the ecclesiastical courts that the revocation of a revoking will does not revive the first will. What authority is there for such doctrine, and what do our code sections, 1292 and 1297, of the Civil Code, mean other than that a formal revocation operates instantly with the execution of the instrument by which it is declared, regardless of whether that instrument be a will or not?
The leading opinion admits that if the will containing the revocation clause is in turn revoked, the revocation is yet effective, the instrument cannot be probated, and, if destroyed, two witnesses as to its contents are not required for the purpose of proving the revocation. Is this not an admission that the revocation was effective from the beginning, from the time of execution of the instrument, and that the operation of the revocatory clause is quite different from that of the clauses disposing of the testator's estate? Upon what other theory is it possible that the revocation is effective although the will as a will has in turn been revoked? And when a will revoking former wills has been destroyed and secondary evidence of its contents is necessary, why should two witnesses be required to prove its contents, if its destruction were not by way of revocation, and less than two be sufficient if it were? What has the intent with which the instrument was destroyed got to do with the matter? If it be sought to prove the instrument for the purposes of probate as a will, then two witnesses as to its contents are required regardless of whether it was destroyed animo revocandi or not. On the other hand, if it be sought to prove the instrument for some other purpose than probate, as, for example, to defeat the probate of a former *Page 792 will by showing its revocation, why should the secondary proof required of its contents vary according as its destruction wasanimo revocandi or not? The statute makes no such difference. It makes the effect of the instrument the same in either case; it works a revocation. The statute does make a difference in the secondary proof required according to the purpose for which it is sought to prove the instrument, and requires more in case it is sought to probate the instrument than where it is sought to prove it for some other purpose. There is here a rational and recognized distinction, and it is this, and this alone, which in my judgment the statute makes. And certainly proving an instrument, whether it be destroyed or not, for the purpose of showing a revocation of wills worked by it, is not proving it for the purpose of probating it.
The leading opinion admittedly cites no authority which directly supports its position, and presumably there is none. It does cite a number which it considers indirectly support its position. It would unduly extend this dissenting opinion — already too long — to discuss them. Suffice it to say that an examination of them all plainly discloses, in my judgment, that each and all go upon some point not present here and making this case radically different from them.
Nor is it the fact, as the leading opinion assumes, that there are no authorities directly in point. In a number of cases the distinction has been made between proving the contents of a lost will for the purpose of probating it, and proving the contents for the purpose of showing the revocation of an earlier will, and in one at least the exact question would seem to have been presented and decided. The rule of the English ecclesiastical courts was that two witnesses, or at least a single witness with corroborating circumstances, were required for the probate of a will. (3 Wigmore on Evidence, secs. 2045, 2048.) Yet, in Helyar v. Helyar, 1 Lee Ecc. 472, [161 Eng. Reprint, 174]. Sir George Lee, after considering the point, held that for the purpose of showing the revocation of one will by a later one, which had been lost or destroyed, the uncorroborated evidence of a single witness was sufficient for the purpose of establishing the contents of the second will operating as a revocation.
The syllabus in Day v. Day, 3 N.J. Eq. (2 Green Ch.) 549, correctly states the decision. It reads: "If a prior will *Page 793 be revoked by a subsequent one, and both be improperly destroyed, the contents of the first instrument cannot be established as the testator's will, although the contents of the second will cannot be ascertained."
In Nelson v. McGiffert, 3 Barb. Ch. (N.Y.) 158, [49 Am. Dec. 170], the testator made two wills, one in 1832 and one in 1837. The first was offered for probate before the surrogate. The second had been destroyed, and proof was offered of it in resistance to the probate of the first as having revoked it. Under the New York practice at the time, the chancellor alone, not the surrogate, had the power to receive proof of a destroyed will for the purpose of establishing it as a testamentary disposition of the decedent's property, that is, for the purpose of probate. The point was made that the second will not having been so established, the surrogate, upon the proceedings for the probate of the first will, could not receive proof of the second for the purpose of showing that the first had been revoked. Concerning this point, the court said (3 Barb. Ch. (N.Y.) 164, [49 Am. Dec. 170]): "The only remaining questions are as to the due execution of the subsequent will of 1837, and its effect upon the will of 1832. There is no doubt as to the jurisdiction and power of the surrogate to receive proof that the will of 1832 was revoked by a subsequent will of the testator, and that such subsequent will had been fraudulently destroyed; or that it was destroyed by the testator when his mind had become so impaired that he was incompetent to perform a testamentary act. The chancellor alone had the power to take proof of such a will for the purpose of establishing it as a testamentary disposition of the property of the decedent. But in resisting the probate of the instrument propounded by MaGiffert as the last will and testament of the decedent, the heirs and next of kin had the right to introduce any testimony which would be sufficient to satisfy the surrogate that the instrument propounded was not in force as a valid will at the death of the testator named therein."
The rule in Mississippi, as in some other states, is, or at least was, that a lost or destroyed will cannot be probated unless all its contents are duly proven. It was held, nevertheless, in Vining v. Hall, 40 Miss. 83, that although a destroyed will could not be established as a will because its *Page 794 contents could not be fully proven, yet the cause of revocation which it contained could be shown, and was effective as a revocation of a former will which it was sought to establish.
In Massachusetts itself, from whose supreme court the leading opinion quotes liberally, the distinction between proving a lost or destroyed will for the purpose of probate and proving it for the purpose of showing a revocation is made. The syllabus in Wallis v. Wallis, 114 Mass. 510, correctly states the ruling, and reads: "When a will revoking a former will is in existence, it must be established in the probate court; but when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will revoked by it."
Finally, there is the decision to which I have referred as exactly in point here. It is In re Wear's Will, 131 App. Div. 875, [116 N.Y. Supp. 304]. There the probate of a will was resisted on the ground that it had been revoked by a second will which could not be found. That it is exactly in point here is apparent from the following quotation from it:
"The objection urged on this appeal from the decree of the surrogate refusing probate to the first will is that the proof offered and received of the execution of the second will is inadequate. The appellant contends that the proof must be of the character required by sections 2621 and1865 of the Code of Civil Procedure, entitling a lost will to probate. The requirement of this section is that the provisions of such lost will must be established 'by at least two credible witnesses, a correct copy or draft being equivalent to one witness.' We are of the opinion that this contention cannot be sustained. It is one thing to admit toprobate a will disposing of a man's estate where the willcannot be found, and quite another thing to merely establishthat a second will, revoking a former will, has been duly madeand executed and left in the possession of the decedent. Inthe one case we are assuming to dispose of property in amanner different from that prescribed by law in the absence ofa will, while in the latter case we are merely permitting theproperty to descend in the manner which the law designates. *Page 795 In the case now under consideration the execution and delivery of the will to the decedent was proved by Mr. Eckstein who drew both wills, and who was a subscribing witness in both of them. He would have been entirely competent to have proved the execution of the will, if it had been found, the remaining subscribing witness being dead; and he was equally competent toprove the execution and delivery of the will to the decedent,not for the purpose of establishing a lost will, but to showthat the will offered for probate was not the last will andtestament of the decedent, and that such an instrument was executed and left in such a custody that the presumption is that it was destroyed with the intention of revocation, with the result that the decedent died intestate. We axe of opinion that the authorities relied upon by the learned surrogate support his conclusion, and that the decree refusing probate to the will of June, 1900, was properly made."
But one point more. The leading opinion in more than one place states in effect that the question is whether a less proof or a different measure of proof is required to prove a part of a will — to wit, a clause of revocation of former wills — than is required for proof of the whole instrument. In my judgment no such question is presented. The question which is presented is, Does the statutory rule as to the proof required for the purpose of probating the instrument, i. e., establishing it as the testator's valid and effective last will and testament, apply when it is not sought to prove the instrument for that purpose at all? The point that I would make is that where the instrument is offered for the purpose of probate, the rule of the Code of Civil Procedure as to the proof required for that purpose applies, but where it is not sought to prove it for that purpose, then the code section — applying in terms only to probate — has no application and the general rules of evidence apply, and this, regardless of whether it is sought to prove the whole or only a part, of the instrument.
It is easy in fact to suggest a case wherein it is sought to prove the whole of a will and where as well the will purports to dispose of property, and where yet the measure of proof required for probate would surely not apply. The declarations of a deceased member of a family as to relationship are always admissible in pedigree cases. Suppose in *Page 796 such a case it was desired to prove that John Smith was the son of James Smith, and for that purpose it was sought to prove a declaration to that effect by a brother of James Smith, the declaration consisting in a will reading, "I hereby give my estate to John Smith, the son of my brother James Smith." The declaration is certainly competent and admissible, whether the instrument has been probated or not, whether it is entitled to probate or not, or whether the declaration is all of the will or is only a part. And yet surely the proof of such a declaration is not governed by the rules applicable to proving the instrument for the purpose of probate, although the thing proven is identically the same in each case, the execution by a certain person of a certain document. The reason why a different measure of proof applies in one case than in the other is that the purposes for which it is sought to prove the instrument are different. If it is sought to prove an instrument for the purpose of probating it as the duly executed and unrevoked last will of the testator, we have a special statutory rule applicable. If it is sought to prove it for any other purpose, there is no special rule applicable, and the general rules of evidence apply. This would seem perfectly plain and simple, and yet the leading opinion would seem to fail completely to appreciate and meet it.
Reference is made to the rule that in this state and in other states which provide by statute for similar probate proceedings, a will may not be introduced in evidence as a muniment of title, or, for that matter, be used in any way as a muniment of title, unless it has been probated. But this rule has no bearing on the present discussion. It is, in fact, not a rule of evidence at all. It is but a corollary of the propositions (a) that an instrument which purports to be a will does yet not operate to transfer title unless it is the valid last will of a decedent, and (b) that in this state there has been provided by statute a proceeding in rem, i. e., probate, by which alone the fact that an instrument is the valid last will of a decedent may be established. The result is that on the one hand, unless the instrument has been admitted to probate, no amount of proof will suffice to give it operation as a muniment of title, and, on the other hand, if it has been admitted to probate, no other proof is required than proof of the order admitting it, and if such *Page 797 proof is furnished, it is final and conclusive. The rule, then, that a will cannot be used as a muniment of title until it has been probated is not a rule of evidence but one simply that a certain adjudication in rem is required to establish its character as the valid last will of a decedent. The point in connection with the present discussion is that by sections 1292 and 1297 of the Civil Code a will does not have to be the valid last will of a decedent in order to operate as a revocation of former wills.
Shaw, J., and Lawlor, J., concurred.
Rehearing denied.
Angellotti, C. J., Wilbur, J., Lennon, J., and Sloane, J., concurred.
Shaw, J., Lawlor, J., and Olney, J., dissented from order denying rehearing.