I dissent. The code provides that no will shall be proved as a lost or destroyed will unless either (1) "the same is proved to have been in existence at the time of the death of the testator" or (2) is shown to have been destroyed in his lifetime fraudulently or by public calamity. (Code Civ. Proc., sec. 1339.) The findings of the trial court negative the second alternative. The probate of the will in this case therefore depended on its being proved that it was in existence at the time of the testatrix's death. No one was produced who saw the will at or after her death. It had, in fact, disappeared some time before, and had been searched for and not found. Its disappearance is in no way accounted for. It was attempted to account for it by the contention that one Berlin destroyed it, but this contention the trial court expressly finds against. The only testimony relied upon to show its existence at the testatrix's death was testimony of declarations by her, from which the inference might be drawn that she believed it to be still in existence. How declarations of this character can be taken as proof that it was in existence some days later, when she died, I am wholly unable to sec. They do not even show that it was in existence when they were made. They were not declarations that she had the will, or knew its whereabouts, or knew that it was still in existence, but were merely expressions of a belief that it would be found if searched for. Why she so believed does not appear. She may have had good reasons or she may not. The facts that do appear are that the will had disappeared some months before the testatrix's death, and was not seen thereafter, so far as shown, either by the testatrix *Page 35 or anybody else, although its disappearance was rather persistently brought to the testatrix's attention, and she urged searching for it, which was done without avail. Yet, although these are all the real facts shown, except such as are negatived by the court's other findings, it is held that they are sufficient to meet the requirement of the code that it affirmatively appear that the will was in existence when the testatrix died. To my mind, if there is any inference whatever to be drawn from them, it is just the contrary.
The reasoning of the main opinion is that it having been shown that the will was in existence some time before the death of the testatrix, the presumption operates that a thing once shown to exist continues in existence as long as things of that nature usually do. But the very purpose of the requirement of the statute that proof be made of the existence of the will "at the time of the death of the testator" is not to permit the presumption to operate, to make it impossible to probate an unproduced will by proof that it was in existence prior to the testator's death eked out by any presumption that it continued to exist until he died. If it can reasonably be inferred from the facts in evidence that it was in existence when the testator died, that is another matter, and quite different from presuming, as a matter of law, that it was then in existence because it was shown to have once existed. In this case no such inference from the facts in evidence can reasonably be drawn.
The opinion also goes on the proposition that the declarations of the testatrix show that the will was not destroyed by her animo revocandi. But suppose they do, what difference does it make? The fact still remains that the will disappeared two and one-half months before the testatrix's death and was not seen afterward. The opinion seems to be based upon the assumption that, unless the will was destroyed animorevocandi, it would still operate. This is not the law. It must be in existence at the time of the testator's death, that is, must not have been destroyed, except where it was destroyed fraudulently or by public calamity. That is the explicit requirement of the statute. If the will were destroyed by the testatrix ignorantly or accidentally, or by someone else, but without fraudulent intent, it was not only destroyed physically but legally as well. The requirement is that it be in existence when she dies, and that that fact *Page 36 be affirmatively proven. Is it a sufficient compliance with this requirement that it be proven that she once made a will, that it disappeared some months before she died, but that she did not destroy it animo revocandi, and believed that it would be found? Yet, when the evidence is examined that, and only that, is the proof in this case.
It should, perhaps, be observed that in many jurisdictions the question presented in case of an attempt to probate a lost will or destroyed will, which is shown to have once existed, is purely a question as to its revocation by the testator. The presumption from its disappearance is that it was revoked, and this presumption must be overcome. Proof that the will was in existence after his death goes, of course, directly to show that it was not revoked, and this is the point of such evidence in those jurisdictions. On the other hand, it is not material that the will was not in existence when the testator died, provided it appear that it was not destroyed by him for the purpose of revoking it, or that he did not know of its destruction in some other manner and acquiesce, as it were. But this is not the rule under our statute. Proof of nonrevocation is not sufficient. The proof must be that the will was in existence when the testator died, or else that it was destroyed fraudulently or by public calamity. This appears not only from the language of the statute but from our decisions. (Estate ofJohnson, 134 Cal. 662, [66 P. 847]; Estate of Patterson,155 Cal. 626, [132 Am. St. Rep. 116, 18 Ann. Cas. 625, 26 L.R.A. (N.S.) 654, 102 P. 941].) It may be that the declarations of the testatrix in this case were sufficient, if the evidence for the proponents alone be believed, to show that the will was never revoked. But that they were sufficient to show that the will was in existence when the declarant later died is a very different thing.
*Page 37Angellotti, C. J., and Lawlor, J., concurred.