The judgment in this case should be reversed without a new trial.
Defendant destroyed the last will and testament of her deceased husband and then petitioned the probate court to restore the same and admit it to probate. The petition set up an alleged will in which plaintiff herein was not a beneficiary. Plaintiff claimed to be a beneficiary in the destroyed will, intervened, and presented such an issue in the probate court, but her proofs upon such issue fell short *Page 434 of the statutory requirement. The proofs of defendant met the statutory requirement, and the will was restored and admitted to probate and its specific terms adjudicated, and plaintiff was not constituted a beneficiary. Thereupon plaintiff brought this suit to recover from defendant damages to the amount of the legacy she claimed was given her in the destroyed will.
The probate court had jurisdiction to restore and admit the destroyed will to probate upon proof, by two witnesses, of its existence and its contents. 3 Comp. Laws 1915, § 13788. Plaintiff was unable, in the probate court, to show by two witnesses that she was a beneficiary. The will has been allowed and the terms thereof fixed by the probate court under proof complying with the statute. Notwithstanding such adjudication, to which plaintiff was a party and had her day in court, she contends that she may maintain the suit at bar and have recovery upon less proof than that required in the probate court. Defendant is not liable to plaintiff unless plaintiff was a beneficiary in the will. Plaintiff is not a beneficiary in the will admitted to probate, and the question is whether plaintiff may maintain an action for damages and recover for loss of a legacy in a will adjudged to grant her no legacy. A recovery by plaintiff in this case will present the anomaly of damages against defendant for destroying a will leaving her a legacy and the admission of the will to probate without constituting her a legatee.
Inability to establish all of alleged bequests in a lost or destroyed will, by evidence meeting statutory requirement, does not prevent probate of the will as proved. This does not mean, however, that one unable to furnish the evidence required by statute to establish an alleged bequest in a lost or destroyed *Page 435 will may bring an action at law and recover damages for loss of such claimed bequest.
In Harris v. Harris, 26 N.Y. 433, cited by my Brother, an alleged lost will, devising real estate, was refused probate for want of evidence, and one claiming thereunder as a devisee filed suit for partition and was held not estopped by the probate proceedings, the court saying:
"Nor can it be claimed that the probate of a will, not lost or destroyed, in a surrogate's court, or one lost or destroyed in the supreme court, under the provisions of the revised statutes, is, in either case, conclusive as to real estate.It is conclusive as to personal, but prima facie only as to real estate, and a failure to have a will probated, either in the surrogate's court or supreme court does not prevent those claiming under it from setting up and establishing their title by common-law evidence, in an action in any court, either of law or equity, where the title to the real estate thereby devised may be involved, or come in question." (Italics mine.)
Manifestly, that decision does not support my Brother's opinion, for the court expressly pointed out that the rule mentioned applies only to a devise of real estate and a contrary rule is conclusive as to personal, and in the case at bar the claim is that the will bequeathed $2,000 to plaintiff.
An examination of the cases cited by my Brother discloses want of applicability to the issue at bar. We quote the following from the syllabus in Heirs of Adams v. Adams, 22 Vt. 50 :
"Where a will was suppressed by those interested in the estate, and administration was taken without regard to it, and the will was never proved in the probate court, the court of chancery decreed the payment of the legacies given by it.Mead v. Heirs of *Page 436 Langdon, Washington Co., 1834, cited by Redfield, J."
In Tucker v. Phipps, 3 Atk. 359 (26 Eng. Rep. Reprint, 1008), the plaintiff claimed a legacy under a destroyed will and filed a bill to obtain an adjudication. There had been no action in the ecclesiastical court, and therefore, jurisdiction was sustained.
In Dulin v. Bailey, 172 N.C. 608 (90 S.E. 689, L.R.A. 1917 B, 556), the action was quite like that at bar, with the exception that there was no participation in the probate proceeding to establish the will. This exception is vital. The probate court had exclusive jurisdiction to restore the destroyed will. The jurisdiction of the probate court was exercised. Plaintiff intervened and an adjudication adverse to her followed. No appeal was taken, probably because the adjudication was in accord with the statutory rule of evidence, and, therefore, unassailable. It begs the question to say that this action is not one to set up a will, for, in the absence of a will with a provision constituting plaintiff a beneficiary, she has no action in tort against the defendant.
In Thayer v. Kitchen, 200 Mass. 382 (86 N.E. 952, 43 L.R.A. 746), an action like the one at bar was brought and held not maintainable because the probate court had jurisdiction and the statute provided a clear, ample, and expeditious remedy in such court, and such remedy was exclusive.
The judgment should be reversed without a new trial, and with costs to defendant.
McDONALD and POTTER, JJ., concurred with WIEST, J. The late Justice FELLOWS took no part in this decision. *Page 437