McCauley v McCauley and McCauley [1910] HCA 16

434 HIGH COURT [1910.

H.C. of A. opposed to him. I do not overlook the evidence as to agistment, 1910. 'put that covers a very small part of the time. There are some Hae unsworn statements by and on behalf of the appellant—and

MacDoxanp, therefore as admissions legally equivalent to sworn testimony—

which, under some circumstances, might support the inference necessary for the respondent's case.

But looking at all that is favourable to the respondent in rela- tion to the rest of the evidence, it is by no means sufficiently clear, cogent or decisive as to actually existing facts to be capable, in opposition to other and differing statements and to the direct testimony to the contrary, of sustaining his burden of proof. In the result therefore the jury had no evidence upon which they could reasonably find the verdict at which they arrived, and therefore as the time had not arrived to pay for the plant the appeal must be allowed.

Tsancs J.

Appeal allowed.

Solicitor, for appellant, Z. B. Bertram. Solicitors, for respondent, Minter, Simpson & Co.

a

(HIGH COURT OF AUSTRALIA.]}

DANIEL McCAULEY . i x . s APPELLANT; DEFENDANT,

AND

FREDERICK JAMES McCAULEY (Praty-

TIFF) aND DESMOND CHARLES}. Responpents. H. ©. oF A McCAULEY (Derenpant) 1910,

Se ts Sypwry, ON APPEAL FROM THE SUPREME COURT OF

May, 2, 3, 4, NEW SOUTH WALES.

5, 6, 10. a Pa, '

Will— Evidence of execution—Lost will—Presumption of revocation—Evidence to

ROI rebut presumption—Onus of proof—Probate suit—Costs out of estate— Wills Tonnes JJ. Probate and Administration Act 1898 (N.S. W.) (No. 13 of 1898), sec. 153.

10 C.LR.) OF AUSTRALIA.

Where a will duly executed, and last seen in the testator's possession, is not forthcoming at his death, the presumption is that it was destroyed by the testator animo revocandi. This presumption may be rebutted by proof by the propounder of the will of circumstances which raise a higher degree of prob- ability to the contrary. The nature cf the provisions of the will itself, the nature of the custody in which it was kept, the opportunities the testator had for losing the will, and a statement by the testator to the medical attendant shortly before his death that his affairs were all " fixed up," are all material in determining between the presumptions of revocation and loss of the will.