questions of fact. Testator resided in the city of Lancaster. On July 8th, the day before his death, his sister and her husband, Charles P. Vaughn, who lived in the city of Philadelphia, visited him, having with them the original and a carbon copy of a will prepared by Vaughn, apparently without previous request made by testator. They remained with testator approximately one hour, and during that time he signed both the original and duplicate; the original being placed in a safe in testator's bedroom, and the duplicate delivered to Vaughn. The duplicate carbon copy was the one offered for probate and refused.

Evidence-presumption as to destruction of

will.

The record discloses no evidence whatever tending to account for the disappearance of the original which testator kept in his possession. It was not found among his effects, and no explanation of its disappearance is discernible in the testimony. At the hearing the production of the original was called for, and counsel for proponents of the will stated the paper was not in their possession; that they never had it, and were without information concerning it. The rule is that, where testator retains custody of his will and following his death the paper cannot found, the presumption, in absence of proof to the contrary, is that he intentionally destroyed the instrument. 1 Williams, Exrs. 7th Am. ed. p. 206, note (n). There is nothing of convincing value in the circumstances here involved to rebut such presumption. Gardner V. Gardner, 177 Pa. 218, 219, 35 Atl. 558; Glockner v. Glockner, 263 Pa. 393, 397, 106 Atl. 731; Weber's Estate, 268 Pa. 7, 13, 110 Atl. 785. In this respect the case differs from Glockner v. Glockner, 263 Pa. 393, 397, 106 Atl. 731, relied on by appellant, where the evidence showed testator referred to his will as being in existence at a time shortly before his death and that thereafter no opportunity was afforded him to de

Wills-effect of

duplicate.

on

tion of the dupli- revocation cate, regardless of where kept or found. This result follows from the fact that a will is not a contract, but a mere expression of intention, to take effect after testator's death, and subject, in the meantime, to revocation or such changes as the maker may deem expedient. The opinion in Dawson's Estate, 277 Pa. 168, 120 Atl. 828, cited by appellant, adds nothing in the way of the legal effect to be given a duplicate will duly signed and executed by testator. In that case no question arose as to revocation by destruction of the copy in testator's possession, the question there being merely one of proof of the will, and we held that either of the copies possessed the elements of a valid will and might be proved as such. In that case we stated exact duplicate papers executed by parties are conclusive, irrespective of a notation marking one as original, and the other as a copy. Likewise, in the present case, had the original been found, or had it been shown to have been lost or accidentally destroyed, there can be no doubt of the admissibility of the duplicate and its being entitled to probate as testator's will. The question here is not one of establishing the contents of the will, but proof of its existence overcoming the presumption of destruction with intention to revoke. In Wanamaker v. Chase, 81 Pa. Super. Ct. 201, cited by appellant, the question was also one of evidence; there that court merely held where several copies of a writing were made at the same time by the same mechanical operation, each

A will is not revoked by any act of spoliation or destruction not deliberately done animo revocandi. 28 R. C. L. 169.

The question under annotation, in one aspect at least, relates to the significance, as bearing upon such intention, of the fact that the will was executed in duplicate, and that one of the duplicates is in existence uncanceled, unless the cancelation of the other has the effect to cancel it also.

As a general rule, where a testator intentionally destroys, or is presumed to have destroyed animo revocandi, the copy of his duplicate will retained in his possession, in the absence of proof to the contrary, that copy and the duplicate in another's hands will be held revoked. Re Field (1919) 109 Misc. 409, 178 N. Y. Supp. 778; Re Schofield (1911) 72 Misc. 281, 129 N. Y. Supp. 190; Asinari v. Bangs (1885) 3 Dem. (N. Y.) 385; Biggs v. Angus (1885) 3 Dem. (N. Y.) 93 (formal cancelation); RE BATES (reported herewith) ante, 294; Boughey v. Moreton (1758) 2 Lee, Eccl. Rep. 532, 161 Eng. Reprint, 429; Rickards v. Mumford (1812) 2 Phill. Eccl. Rep. 24, 161 Eng. Reprint, 1066; Colvin v. Fraser (1829) 2 Hagg. Eccl. Rep. 266, 162 Eng. Reprint, 856; Burtenshaw v. Gilbert (1774) Cowp. pt. 1, p. 49, 98 Eng. Reprint, 961. And see Pember

ton v. Pemberton (1807) 13 Ves. Jr. 291, 33 Eng. Reprint, 303.

The rule is recognized in O'Neall v. Farr (1844) 30 S. C. L. (1 Rich.) 80, but not applied, because it did not sufficiently appear that the will was executed in duplicate.

Where a testatrix executed duplicate wills, one of which was in her possession a year prior to her death, at which time she said that she expected to change her will, and after which time that duplicate was never seen, the court held that probate of the other duplicate (a carbon copy) would be denied, applying the presumption that a will proven to have had existence, and not found on the death of the testatrix, was destroyed animo revocandi. Re Field (N. Y.) supra. It does not appear who had possession of the copy offered for probate, but it is implied that it was not in the possession of testatrix at the time of her death.

In Re Schofield (1911) 72 Misc. 281, 129 N. Y. Supp. 190, supra, where one of two duplicate wills was kept by the attorney who drafted them, and there was no proof that the testator actually destroyed the duplicate retained in his possession, but uncontroverted evidence showed that he removed it from his safe and placed it in his pocket a month before his

death, and that the will had not been seen since then, it was held that the will was revoked by the testator in his lifetime, and that probate of the other duplicate would be denied. The court said: "In this cause there is no proof that the testator actually detroyed the example in his custody, but it was not found at his death, nor was it produced at the hearing in this proceeding. It has disappeared. There can be no doubt that to such a state of facts we must apply the established presumption that a will proved to have had existence and not found at the death of testator was destroyed animo revocandi.""

In Asinari v. Bangs (1885) 3 Dem. (N. Y.) 385, supra, it was held by a surrogate's court that a decree denying probate would be entered, where it was found that one of the duplicate wills proved to have been executed by a testatrix was torn in pieces by her, animo revocandi, there being no evidence of her having had possession of the other copy after its execution. The court, after commenting on the above lack of evidence, said: "It must, therefore, be presumed, in the absence of evidence to the contrary, that the destruction of that one of the two papers which was within her reach was intended to nullify the other."

In the reported case (RE BATES, ante, 294), where duplicate wills consisting of an original and carbon copy were both signed by the testator, who retained possession of the original until his death, when it could not be found, it was held that the presumption, in absence of proof to the contrary, that he intentionally destroyed the instrument, applied, and that the revocation of the original in the testator's hands revoked the carbon duplicate in the other party's possession. The court stated that the duplicate would be revoked by the revocation of the original, "regardless of where kept or found."

Where a testatrix executed duplicate wills, delivered one into the possession of the proponent, and retained possession of the other, which latter was found in her trunk after her

death, canceled, it was held that the other duplicate was also canceled, and that she died intestate. Boughey v. Moreton (1758) 2 Lee, Eccl. Rep. 532, 161 Eng. Reprint, 429, supra. It is to be noted that the court gave the proponent until the succeeding term to seek evidence to the effect that the testatrix did not cancel the will animo cancellandi, but accidentally, or that it was done by someone else.

In Rickards v. Mumford (1812) 2 Phill. Eccl. Rep. 24, 161 Eng. Reprint, 1066, supra, where the court had the strongest confirmation of the presumption that a testator had intentionally destroyed the copy of a duplicate will retained in his possession, and not to be found at his death, from statements that he was going to burn it, and that he had burned it, with strong pleading with the deponent to accompany him to another town for the purpose of having a lawyer make another will, it was held that the testator had destroyed the will in his possession, and thereby had revoked it and the other duplicate will in the possession of another.

Where one original of a duplicate will executed in India was traced to the possession of the testator in England, until his death, when it could not be found, the court acted on the prima facie presumptions that he detroyed it himself, and that he thereby intended to revoke the other original in India, and, there being no sufficient evidence to rebut such presumptions, the deceased was pronounced dead intestate. Colvin V. Fraser (1829) 2 Hagg. Eccl. Rep. 266, 162 Eng. Reprint, 856, supra.

In Burtenshaw v. Gilbert (1774) Cowp. pt. 1, p. 49, 98 Eng. Reprint, 961, supra, where one original of a duplicate will, retained in the possession of the testator, was destroyed by him, and a later will canceled, it was held that the other duplicate was also revoked, even though it was found among the testator's papers after his death, when the facts evidenced his firm intention to revoke it, although the jury did not determine how or when the second duplicate was returned to the testator's possession,

from the possession of the one to whom it had been intrusted. Another report of this case under the name Berkenshaw v. Gilbert, leading to the same result, is found in Lofft, 466, 98 Eng. Reprint, 750.

And see Onions v. Tyrer (1716) 2 Vern. 741, 24 Eng. Reprint, 418, where the adverse result apparently turned on a cancelation by mistake.

Seymour's Case (Eng.) (cited in Onions v. Tyrer (Eng.) supra) apparently held that a cancelation of one duplicate will, by the testator, with the intention of destroying the will, was a good revocation of the whole will. No report of this case is available, but the statement made in court as to its holding was not challenged by anyone.

In Pemberton v. Pemberton (1807) 13 Ves. Jr. 291, 33 Eng. Reprint, 303, supra, Lord Chancellor Erskine said: "If a testator cancels that part which is with him, the legal presumption is that the duplicate in the possession of another is not to prevail. My opinion goes farther; that, if the testator himself has possession of both, the presumption holds, though weaker; and farther, that even if, having both in his possession, he alters one, and then destroys that which he had altered, there is also the presumption, but still weaker. But all these cases, according to Burtenshaw v. Gilbert (Eng.) supra, are matter of evidence." In the Pemberton Case, however, probate was granted, where two duplicate originals were among the testator's papers at his death, one canceled, there being affirmative evidence that he did not intend to revoke the will.

In Re Walsh (1917) 196 Mich. 42, 163 N. W. 70, Ann. Cas. 1918E, 217, where a will was executed in duplicate, the destruction of one copy by the testator was held to raise a presumption of revocation, which, however, was not irrebuttable. It was also held a question for the jury, under the evidence, to determine whether there was a revocation of the will, under instructions to the effect that if one duplicate copy was destroyed previous to the time when the testator put the other copy into the possession of an executrix, there could be no

conclusive presumption of destruction with intent to revoke. Probate was granted, the court saying that the evidence showed the testator's affection for the beneficiaries up to the time of his decease; that his property did not change so as to give him any reason for changing his will; and that the testator, while handing a draft of the will to an executrix, said: "Keep this, lady; you may want them some day."

In Managle v. Parker (1908) 75 N. H. 139, 24 L.R.A. (N.S.) 180, 71 Atl. 637, Ann. Cas. 1912A, 269, where two wills, practically duplicates, were executed by a testatrix, who destroyed one, after having given the other to a friend, to whom she intrusted it for five years, it was held that a want of intention to revoke the will could be found, there being evidence that she said she destroyed the will because some relatives had "made a fuss," but later declared that she was very fond of the residuary legatee, and was going to take care of and provide for her if it lay in her power, and that "that was fixed." In connection with this, the court said: "From the facts surrounding the execution of the two documents by the deceased, it could be found that she intended them for duplicate wills, and that she understood that the copy left with her neighbor would continue to be her will, no matter what was done with the copy she herself retained. There is no evidence (other than by way of presumption) that the testatrix ever had a different understanding. It is true that there was evidence that at the time she destroyed the copy of the will in her possession she said she did not like it and would not have it. Undoubtedly, this was sufficient evidence to support a finding that she intended to revoke her will, but it was not a preferred class of evidence of intent. Taken in connection with the evidence of her understanding as to the force and effect of the other copy, and considering the fact that she allowed that copy to continue in the custody of her near neighbor and friend for five years after the destruction of the copy she herself had, the evidence of intent