John Minkler and others, appellants, v. The Estate of Peter Minkler, appellees, 14 Vt. 125

The opinion of the court ivas delivered by Redfield, J. The issue in the court below was upon the legal existence of the will, at the decease of the testator. This was joined and tried by the court. They established the will upon such evidence as satisfied them that, although the will had been destroyed, by some one, before the decease of the testator, it was not with his privity. We have no doubt this is perfectly competent to be done.

When a will is shown to have once existed, it then continues, unless revoked in one of the modes pointed out by statute, i. e. 4 by the 4 implication of law, or by some will, codicil, or other writing, .4 executed in the same manner wills are required to be, or by 4 burning, cancelling, or obliterating, with the intention of re-4 voking,’&c. Now it is observable, first, that the mere absence of a will, shown once to have existed, does not in fact show either of these modes of revocation, i. e. burning, cancelling or obliterating; much less does it show that done animo revocandi.

The act is the mere symbol of the intention, and may exist without it. The will, to be revoked, need not be entirely consumed, provided it be burned animo revocandi. So, too, it might be accidentally, or furtively, burned, to any extent, and it not amount to a revocation. So too of cancelling or obliterating. The statute of Charles 2d is precisely the same as our own, with the addition to the specific modes of revocation, of 44 tearing.” This is but one mode of obliterating, which is found in both statutes, so that the difference is not important.

It is then not a legal, nor artificial, presumption of the law, like the presumptiones juris et de jure of the civil law, that if the will is burned, &c., it is at all events revoked. So too it being destroyed, or lost in any other mode. No doubt we would hold, as the English Ecclesiastical courts have done, that the mere absence of the will did, prima facie, amount to proof of revocation. Toxley v. Jackson, 3 Phill. 128. But we would hold this merely a natural presumption, as matter of fact, and imposing the duty upon him who asserted the contrary, to support his assertion by proof.

This was the rule adopted by the court in New York, in the case of Betts v. Jackson, ex dem. Brown, 6 Wendell, 173, where they reversed the case cited by counsel from the 9 Cowen, 208. This is the rule which seems to have governed the proceedings in the court below, and their judgment is affirmed.