Davenport . Davenport. 67 Eq. law. She prays that the defendant Job P. Davenport may be decreed to produce the said will in order that the same may be probated, or, if it be found that the said will has been destroyed, that the complainant may have the decree of this court, re-establishing it as the last will of said decedent, Thomas C. Davenport. All the defendants, jointly and severally, answer the bill of complaint. The defendant Anna M. Davenport alleging that she is the lawful widow of the said Thomas C. Davenport and that her children are his heirs-at-law and next of kin. They admit that the said Thomas C. Davenport is now deceased; that he died on the 17th day of February, 1903, seized of both real and personal estate, and they allege that he died intestate. They deny that the decedent, Thomas C. Davenport, was ever lawfully married to the complainant, Alla A. Davenport, at any time, and they deny that she was his lawful wife at the time of his decease or at any other time. They deny that she is his lawful widow; on the contrary, they insist that the defendant Anna M. Davenport was lawfully married to the decedent, Thomas C. Davenport, on December 7th, 1865, in this state; that she was his lawful wife at the time of his decease and now is his lawful widow; that the defendants, Job P. Davenport, Mary A. Davenport and Lillian Davenport, are the children and only heirs-at-law and next of kin of the said Thomas C. Davenport, and that they were all born to him by his said wife and now widow, the defendant Anna M. Davenport. The defendants admit that the said Thomas C. Davenport resided in the county of Camden, and that he was of sound mind. They deny that he made or published the last will set forth in the complainant's bill, and that he departed this life leaving any such will unaltered and unrevoked; on the contrary, they state the fact to be that he departed this life intestate. They deny that any such will was delivered to Henry R. Tatem, or that while of unsound mind and incapable of attending to business, the decedent, Thomas C. Davenport, was unduly in fluenced to send for said will or to tear or destroy it or any part thereof. They deny that the said will was delivered to said Job P. Davenport, as alleged in the bill, and that it is being concealed or has been destroyed, with intent to defraud the complainant; on the contrary, they allege and insist that said Davenport departed this life intestate. The defendants further say that, as the lawful widow and heirs-at-law and next of kin of said Thomas C. Davenport, they are entitled to all the real and personal property whereof he died seized and possessed, and they deny that the complainant has any right, title or interest therein, and also deny that she ever was the wife or is the widow of said decedent. They admit their application' for letters of administration upon the estate of said Thomas C. Davenport, deceased. The defendants further deny the jurisdiction of this court in the premises and say that the complainant has a full and adequate remedy at law, and they claim the same benefit as if they had demurred to the bill of complaint. The cause came to a hearing on these pleadings. Mr. John G. Horner and Mr. Frank T. Lloyd, for the complainant. Mr. Henry F. Stockwell and Mr. David J. Pancoast (with whom was Mr. Horace Rumsey, of the Philadelphia bar), for the defendants. GREY, V. C. This cause has been well prepared and ably presented by counsel on both sides. It involves important questions, dependent to some extent upon the details of the evidence, a part of which I have found it necessary to quote. In order to avoid confusion, it should be noted that the defendant named in the bill as Mary A. Davenport, and therein. alleged to be the former wife of Thomas C. Davenport, is the same person who answers as Anna M. Davenport, insisting that she was the lawful wife and is now the widow of the decedent. Davenport v. Davenport. 67 Eq. Thomas C. Davenport. She will be designated in this opinion as Anna Mary Davenport, the name under which she answers the bill of complaint. The complainant alleges that the instrument which she seeks to have established by decree of this court, is the last will and testament of Thomas C. Davenport. The defendants, by their answer, in express terms, deny that any such will was made and published by Mr. Davenport. This is the first point in the cause, and on this the burden of proof rests upon the complainant. The complainant's second contention is, that the will which she alleges Mr. Davenport made and published has, through undue influence exerted upon him, or by reason of his own act, at a time when he was of unsound mind and incapable of transacting business, been revoked and canceled. The burden of showing the existence of these conditions must also be assumed and carried by the complainant. I will consider the first point. Has the complainant shown. that the instrument which she seeks to have declared to be the last will and testament of Thomas C. Davenport, was by him duly made and published as his last will? The bill of complaint alleges that on January 20th, 1903, Mr. Davenport executed the paper in question. As there set forth, the alleged will gives to his son, Job P. Davenport, a farm and vineyard near Aurora, New York; to his daughters. Mary and Lillian, two cottages at Island Heights, New Jersey ; and to the complainant, Mrs. Alla A. Davenport, all the decedent's personal property, also his farm at West Collingswood. his farm and vineyard at Bluff Point, New York; his store property in Philadelphia, and all the residue of his real and personal estate, and appoints Henry R. Tatem executor. The evidence does not define with precision the values of Mr. Davenport's property. The complainant states the real estate, in all, to be of the value of about $50,000 to $60,000, subject to mortgages of about $21,000, and that there was also personal property of considerable value. If Mr. Davenport made the will set forth in the bill of complaint, it plainly gave to Mrs. Alla A. Davenport much the greater portion of his estate. The statute prescribes that a will shall be in writing, shall be signed or the signature acknowledged by the testator, who shall declare such writing to be his last will, in the presence of two witnesses, who shall be present at the same time, who shall subscribe their names to such writing as witnesses, in the presence of the testator. Gen. Stat. p. 3760 § 22. The usual mode of proof is to produce the writing before the court which is to receive the probate, call one or more subscribing witnesses thereto, and prove that each of these requisite statutory incidents has been performed. The paper having been thus produced and identified, it proves its own contents. This method of proof is, of course, impossible, when the alleged will has been, as a physical fact, canceled and destroyed, and therefore cannot be produced. In such cases, when the beneficiaries under the canceled will claim that its destruction was by accident or mistake, or by the act of the testator when insane, they must carry the burden of proving the observance of the statutory requirements in the making and publication of the alleged will, and also what its contents were, and that its revocation was not brought about by the sane intent and the capable act of the testator. The complainant in this case, in carrying this burden, has called as witnesses all the persons who were present on the occasion when she alleges Mr. Davenport made the will, which she asks this court to establish. They were Mr. Meeteer, a member of the bar, who drew the paper and signed it as a witness, and Mr. Joseph B. Tatem, who also signed it as a witness. All the testimony shows that no one except Mr. Davenport, the alleged testator, and Mr. Meeteer and Mr. Joseph B. Tatem were present when Mr. Davenport dealt with the paper in question. The paper itself is not produced. The testimony shows that it has been destroyed after a cancellation by Mr. Davenport, the legality of which the complainant now disputes. Whatever evidence is offered touching the execution and contents of this Davenport v. Davenport. 67 Eq. alleged testament is necessarily by parol proof. The testimony on the point of the making and publication of the paper, alleged by the bill of complaint to be Mr. Davenport's last will, and the showing of its contents, is of the essence of this case, for if it is not conclusively proven that such an instrument was duly made and published as the last will and testament of Mr. Davenport this court cannot by its decree declare and establish it as his will, no matter under what circumstances it may have been afterwards revoked and destroyed. The examination of the two subscribing witnesses, Tatem and Meeteer, was in great part taken by leading and suggestive questions. Its details are too long to be here repeated, but a short summary will show how far they furnished the necessary proofs. No one else than these two could prove the performance of the statutory requirements necessary to the making of an effective will, for, as stated, it is admitted they were the only persons present with Mr. Davenport when those requirements must have been performed, if they ever were performed. Mr. Tatem testified that he took the alleged will over to Mr. Davenport's house; that Davenport signed it in the presence of both himself (Tatem) and Meeteer, and that they both signed it in Davenport's presence; but he makes no proof whatever that on the occasion described Mr. Davenport published or declared, directly or indirectly, that the paper which he and the witnesses signed was his will; nor does this witness prove that Davenport in any way characterized the paper as his will, nor that anyone else did, in Davenport's presence and with his assent. Mr. Tatem invariably declared that he could not recall what Mr. Davenport said about the paper. Mr. Tatem proved nothing as to any attestation clause to the paper which he witnessed; he declared he did not know what the attestation clause of a will was. His testimony does not prove that the alleged will had any such clause. He did not seem to be unfriendly to the complainant but to be unacquainted with business of this sort and not able to recall its details. The only person other than Joseph B. Tatem who was present when the alleged will was executed by Mr. Davenport was Mr. |