a later will revoking the one offered for probate.163 It has also been held that his declarations that he made his will in duplicate and had destroyed one of the originals in order to revoke both, are not admissible. 164

§2698. Lost wills-Burden of proof-Declarations and other evidence. The burden of proof is upon the party offering a lost will for probate.165 But, upon sufficient proof of destruction, circumstantial evidence may be sufficient to support a finding for the will,166 that it existed unrevoked at the time of the testator's death. In some jurisdictions the contents of a lost will must be proved by the testimony of two credible witnesses, as a condition precedent to its admission to probate.167 Where this is the rule, and the beneficiaries under a will are held to be incompetent witnesses at probate, it has also been held that the contents of a lost will cannot be proved by the sole beneficiary and by a disinterested party.168 And the declarations of a testator cannot be received as a substitute for one witness. 169 Persons who seek to establish a will under such provisions have the burden of proving that a will was executed and what disposition it made of the testator's

Rodgers, 6 Heisk. (Tenn.) 489; note to, Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Taylor v. Cox, 153 Ill. 220, 38 N. E. 656; Stevens v. Stevens, 72 N. H. 360, 56 Atl. 916.

163 White's Will, 25 N. J. Eq. 501; Noyes's Will, 61 Vt. 14, 17 Atl. 743; as to republication and revival, see Graham v. Burch, 47 Minn. 171, 23 Am. St. 354-356; Kern v. Kern, 154 Ind. 29, 55 N. E. 1004; note in, Cheever v. North, 106 Mich. 390, 37 L. R. A. 561; Matter of Stickney, 161 N. Y. 42, 76 Am. St. 251, et seq. 164 Atkinson V. Morris, (1897) Prob. Div. 40.

105 Newell v. Homer, 120 Mass. 277; Banning v. Banning, 12 Ohio St. 437; Coddington v. Jenner, 57 N. J. Eq. 528, 41 Atl. 874, 45 Atl. 1090; Graham v. O'Fallon, 3 Mo. 507. As the evidence is required to be clear and satisfactory. Buchanan v. Mat

lock, 8 Humph. (Tenn.) 390; Morris v. Swaney, 7 Heisk. (Tenn.) 591; Vining v. Hall, 40 Miss. 83; Dudley v. Wardner, 41 Vt. 59; Kitchens v. Kitchens, 39 Ga. 168.

168 Schultz v. Schultz, 35 N. Y. 653; Harris v. Harris, 10 Wash. St. 555, 39 Pac. 148.

187 Jones v. Casler, 139 Ind. 382, 38 N. E. 812; Keesy v. Dimon, 91 Hun (N. Y.) 642, 37 N. Y. S. 92; Todd v. Rennick, 13 Colo. 546, 22 Pac. 898; Harris v. Harris, 10 Wash. St. 555, 39 Pac. 148. The Indiana statute requires that it be so proved, or by a correct copy and the testimony of one witness.

169 Keesy v. Dimon, 91 Hun (N. Y.) 642, 37 N. Y. S. 92.

100 Clark v. Turner, 50 Neb. 290, 69 N. W. 843; Harris v. Harris, 10 Wash. St. 555, 39 Pac. 148; but see Skeggs v. Horton, 82 Ala. 352, 2 So. 110.

property, that the will has been lost or destroyed,170 and that it was not lost or destroyed by or through any agency of the testator171 for the purpose of revoking it.172 Among the ways in which this may be established are by affirmative proof that the will was destroyed by the testator, either accidentally or while suffering from temporary insanity,173 or by some other person after the testator's death,174 or the loss of the will may be shown, where its execution has been established, by proof of a search and failure to find the will,175 and evidence that it was in existence when the testator died, or of other circumstances which will rebut the presumption that the testator destroyed it animo revocandi.17 176 The scrivener who wrote the will,177 or persons who have seen and read it, are generally competent witnesses to prove its provisions,178 and such provisions must usually be established by the best secondary evidence in existence, or that can be obtained.179 The weight of authority is to the effect that the declarations of the testator are admissible as tending to prove the existence and contents of the will.18

170 Kaster v. Kaster, 52 Ind. 531; 171 McDonald v. McDonald, 142 Ind. 55, 82, 41 N. E. 336.

172 Forbing v. Weber, 99 Ind. 588. 173 Forbing v. Weber, 99 Ind. 588. 174 Jones v. Casler, 139 Ind. 382, 38 N. E. 812.

175 See, Ford v. Teagle, 62 Ind. 61; Jones v. Casler, 139 Ind. 382, 394, 38 N. E. 812; Abbott Tr. Ev. (2d ed.) 163, § 78.

170 Cassoday Wills, § 318; Jones v. Casler, 139 Ind. 382, 394, 38 N. E. 812; Timon v. Claffy, 45 Barb. (N. Y.) 438; Idley v. Bowen, 11 Wend. (N. Y.) 227; see generally as to necessary and proper evidence, Thornton Lost Wills, Chapters IV, VII, VIII.

177 Ford v. Teagle, 62 Ind. 61.

178 Jones v. Casler, 139 Ind. 382, 38 N. E. 812.

179 Coddington v. Jenner, 57 N. J. Eq. 528, 41 Atl. 874, 45 Atl. 1090; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336.

180 Sugden v. St. Leonards, 1 Prob. Div. 154; Keen v. Keen, L. R. 3 Prob.

& Div. 105; Woodward v. Goulstone, 11 App. Cas. (D. C.) 469; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Southworth v. Adams, 11 Biss. (U. S.) 256; Weeks v. McBeth, 14 Ala. 474; Johnson's Will, 40 Conn. 587; Dawson v. Smith, 3 Houst. (Del.) 335; Patterson v. Hickey, 32 Ga. 156; Page, In re, 118 Ill. 576, 8 N. E. 852; Schnee v. Schnee, 61 Kans. 643, 60 Pac. 738; Steele v. Price, 5 B. Mon. (Ky.) 58; Collagan v. Burns, 57 Me. 449; Pickens v. Davis, 134 Mass. 252; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961; Lambie's Estate, 97 Mich. 49, 56 N. W. 223; Harring v. Allen, 25 Mich. 505; Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110; Knapp v. Knapp, 10 N. Y. 276; Behrens v. Behrens, 47 Ohio St. 323; Youndt v. Youndt, 3 Grant Cas. (Pa.) 140; Foster's Appeal, 87 Pa. St. 67; Durant v. Ashmore, 2 Rich. L. (S. Car.) 184; Minkler v. Minkler, 14 Vt. 125; Valentine's Will, 93 Wis. 45, 67 N. W. 12. But not to Ishow due execution. McDonald v.

Other question relating to the subject are sufficiently treated in the chapter on lost instruments.181

§ 2699. Nuncupative wills.-The statutes of the various states usually prescribe in what cases nuncupative wills may be made and the formalities to be observed, and two or more witnesses are usually required, except that in the case of certain favored classes, such as soldiers and sailors in actual service, the same formalities are not required. It must appear that the testator intended to make a will and that he intended to make a nuncupative will and not merely that what he said was preparatory to making a written will or the like.182 The number of persons prescribed by statute must be called upon to witness the will, and it must be afterwards reduced to writing as provided by statute, and, in general, all the statutory requirements must be observed.183 The animus testandi and testamentary capacity must be shown, and it is frequently said that it must be made to appear by clear and convincing evidence.184

§ 2700. Alteration of wills.-Where alterations appear upon the face of the will offered for probate it is often said that the burden of proof is upon the party offering it, to show that the alterations were made before execution.185 "This proposition," says Professor Page,

McDonald, 142 Ind. 55, 41 N. E. 336; Cheever v. North, 106 Mich. 390, 64 N. W. 455. Nor, perhaps, as sufficient in themselves as to prove the contents. See as to presumptions, Anderson v. Irwin, 101 Ill. 411; Kotz v. Belz, 178 Ill. 434, 53 N. E. 367; Marshall v. Marshall, 42 S. Car. 436, 20 S. E. 298.

181 Vol. II, Ch. LXX.

182 Grossman's Estate, 175 Ill. 425, 51 N. E. 750; Knox v. Richards, 110 Ga. 5, 35 S. E. 295; Porter's Appeal, 10 Pa. St. 254; Donald v. Unger, 75 Miss. 294, 22 So. 803; Dockum v. Robinson, 26 N. H. 372; Wiley's Estate, 187 Pa. St. 82, 40 Atl. 980, 67 Am. St. 569, and note on the entire subject.

183 Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418; Biddle v. Biddle, 36 Md.

630; Taylor's Appeal, 47 Pa. St. 31; Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115; Askin's Estate, 9 Mackey (D. C.) 12; Martinez v. Martinez, 19 Tex. Civ. App. 661, 48 S. W. 532; Bolles v. Harris, 34 Ohio St. 38.

184 Lucas v. Goff, 33 Miss. 629; Dorsey v. Shepperd, 12 Gill & J. (Md.) 193, 37 Am. Dec. 77; see also, Mitchell v. Vickers, 20 Tex. 377. So, ordinarily, the will must be shown to have been made in extremis. Sykes v. Sykes, 2 Stew. (Ala.) 364, 20 Am. Dec. 40; Morgan v. Stevens, 78 Ill. 287; Scaife v. Emmons, 84 Ga. 619, 10 S. E. 1097, 20 Am. St. 383.

185 Cooper v. Bockett, 4 Moore P. C. C. 419, 10 Jur. 931; Lushington v. Onslow, 6 Not. Cas. 183; Doe v. Palmer, 15 Jur. 836; Lawson, In re,

"means first, that in every will the burden of proof is upon proponents to establish the execution in the form in which it is offered for probate;186 and second, that in case of certain alterations the presumption arises that they were made after execution."187 The question as to the burden of proof and as to whether there is any presumption as to the time of the alteration of an instrument, and, if so, what it is, has been considered elsewhere,188 but there is, perhaps, more reason for presuming that an alteration in a will was made after its execution, than there is in the case of other writings, and it seems that an alteration in a will, which is found in the custody of the testator, is, as a general rule, presumed, in the absence of evidence, to have been made by the testator after the execution of the will.189 But it has been held that where the evidence shows that the will was in the custody of one who was interested in suppressing it, alterations apparent on the will are not ordinarily presumed to have been made by the testator.190 And it is held that if the words, claimed to be an alteration, are necessary to the sense of the will, it will be presumed that they were accidentally omitted in drafting the will, and were inserted before execution.101 And, in New York, it has been stated broadly that "where an interlineation on a will is fair upon its face, and it is entirely unexplained, there being no circumstances whatever to cast suspicion upon it, it would not be proper for any court to hold that the alteration was made after execution."192 The subject of the admissibility of evidence where an alteration appears in an instrument has already been considered,193 but it may be said in this connection that a certificate in the attestation clause that the alterations were made before execution is admissible

25 Nova Scotia 454; Camp v. Shaw, 52 Ill. App. 241; also, Shaw v. Camp, 163 Ill. 144, 45 N. E. 211; Wilson, In re, 8 Wis. 171.

186 Holman v. Riddle, 8 Ohio St. 384.

187 Page Wills, 513.

198 Vol. II, §§ 1504-1509.

189 Cooper v. Bockett, 4 Moore, P. C. C. 419; Sykes, Goods of, L. R. 3 P. & D. 26; Burgoyne v. Showler, 1 Rob. Ecc. 5; Lawson, In re, 25 Nova· Scotia 454; Camp v. Shaw, 52 Ill. App. 241; Toebbe v. Williams, 80 Ky. 661; Baptist Church v. Rob

barts, 2 Pa. St. 110; Williams v. Ashton, 1 Johns. & Hem. 115.

190 Mile's Appeal, 68 Conn. 237, 36 Atl. 39; Bennett v. Sherrod, 3 Ired. L. (N. Car.) 303; see also, Vol. II, § 1509.

191 Cadge, Goods of, L. R. 1 P. & D. 543; Birt, Goods of, L. R. 2 P. & D. 214; Adams, Goods of, L. R. 2 P. & D. 367; Martin v. King, 72 Ala. 354. And the attesting clause may show this.

192 Grossman v. Grossman, 95 N. Y. 145.

93 Vol. II, §§ 1510, 1511.

to prove such fact, and, if genuine, is generally conclusive; 194 and that extrinsic evidence from those who saw the will at the time of the execution is usually admissible to show whether the alterations were made before execution or not.195 It has also been held that declarations of the testator before or at the time of the execution of the will are admissible to show whether the alterations then existed ;196 but that his declarations after the execution of his will as to the time when the alterations were made are inadmissible.197

§ 2701. Attesting or subscribing witnesses.-The history of the rule requiring the calling of attesting or subscribing witnesses is an interesting one,198 but most of the reasons for it no longer exist, except, perhaps, where the statute requires the instrument to be attested, and the principal, if not the only, instance in which it is still retained in most jurisdictions is in the case of wills, as to which there is more reason for it than in other cases. The modern statutes vary somewhat in their provisions, but at least two attesting witnesses are usually required,100 and, if available, at least one of them must be called to prove the due execution of the will, and if he cannot testify to all the necessary facts the other must also generally be called.200 But when called other witnesses may also be called to prove or disprove testamentary capacity and the execution of the will.201 The statutes generally contain provisions as to when attesting witnesses shall be considered unavailable, and for proof of the testator's signature, or that of the witnesses or both. The attesting witnesses are not necessarily pre

194 Lurie v. Radnitzer, 166 Ill. 609, 46 N. E. 1116; Crossman v. Crossman, 95 N. Y. 145.

103 Hindmarch, Goods of, L. R. 1 P. & D. 307; Wright v. Wright, 5 Ind. 389.

196 Doe v. Palmer, 16 Q. B. 747; Sykes, Goods of, L. R. 3 P. & D. 26. 197 Adamson, Goods of, L. R. 3 P. & D. 253; but see, Ravenscroft v. Hunter, 2 Hagg. 65; see, Vol. II, § 1513. 199 See, Thayer Prelim. Treatise Ev. 502.

201 Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107, 51 Am. St. 131; Morton v. Heidon, 135 Mo. 608, 37 S. W. 504; Eliot v. Eliot, 10 Allen (Mass.) 357; Dewey v. Dewey, 1 Metc. (Mass.) 349, 35 Am. Dec. 367; Rugg v. Rugg, 83 N. Y. 592; Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220; Meurer, Will of, 44 Wis. 393, 28 Am. R. 591; Hobart v. Hobart, 154 Ill. 610, 39 N. E. 581, 45 Am. St. 151; Tyler, Estate of, 121 Cal. 405, 53 Pac. 928; note in, Padgett v. Lawrence, 10 Paige Ch. (N.

199 See, Stevens v. Leonard, 154 Y.) 170, 40 Am. Dec. 232, and SteInd. 67, 77 Am. St. 459.

200 Stevens v. Leonard, 154 Ind. 67, 77 Am. St. 469-473.

vens v. Leonard, 154 Ind. 67, 77 Am. St. 474; see also, Haynes v. Haynes, 33 Ohio St. 598.