Gago v. Mamuyac
49 P 902
FACTS:
Miguel Mamuyac died on January 2, 1922. It appears from the record that Miguel executed a last will and testament on July 27, 1918. Gago presented such will for probate which was opposed by Cornelio Mamuyac et. al. Said petition for probate was denied on the ground that the deceased executed another will on April 16, 1919. Gago presented the April 16 will for probate which was again opposed by Cornelio et. al. alleging that the will presented by Gago is a carbon copy of the original April 16 will; such will was cancelled during the lifetime of the deceased; and that said will was not the last will and testament of the deceased. The RTC found that the deceased executed another will on December 30, 1920.
ISSUE:
W/N the April 16 will was cancelled.
HELD:
YES. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.
In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator.
