In re Steinke's Will.

estate by will, and died believing she had done so; and that there was no evidence to show that she had received the will again, or had destroyed it or authorized its destruction, or had taken it out of the possession of the person who had so received it.

For the appellants there was a brief by F. A. Becher, in pro. per., and Dahlberg & Becher, attorneys, and oral argument by S. W. Dahlberg. They argued that the burden of proof was upon the proponent to establish that the will was lost or accidentally destroyed. The presumption is that, if it cannot be found, it has been revoked, and that presumption can be overcome only by positive proof. Jamison v. Snyder, 79 Wis. 286; Cassoday, Wills, § 356; Thornton, Lost Wills, 56; Schultz v. Schultz, 35 N. Y. 653; Betts v. Jackson, 6 Wend. 173; Idley v. Bowen, 11 id. 227.

For the respondent there was a brief by Keefe & Brand, and oral argument by J. C. Keefe.

PINNEY, J. The evidence clearly shows that the deceased, early in 1893, duly made and executed her last will and testament, disposing of all her property in the manner and to the persons stated in the judgment of the circuit court, and that she delivered it for safe keeping into the hands of Mr. Holzhauer, the notary who drew it. She died October 28, 1893, and the evidence shows in the full belief that her said will still remained in the hands and safe keeping of Holzhauer. Two days after the death of the testatrix, application having been made by Mrs. Strehlow, one of the devisees, he was unable to find it in his safe, where he kept divers wills which he had drawn, or elsewhere.

He testified that he was under the impression that she had called for it, and that he had let her take it, and he so testified, in substance, in the county court. But on the trial in the circuit court he was unable to say with any certainty that he had so delivered it, or to remember that he had ever

In re Steinke's Will.

parted with it to any one. At one time it appears that he thought he might have delivered it to the county judge, after the death of the testatrix, and inquired at his office for it, and had made thorough search for it, but without avail. He further testified that, after the will was made, he could not remember what was done with it; that he remembered of having the will in his possession since that time, in his safe, but did not know what had happened to it; that he remembered that Mrs. Strehlow came to him, after the death of the testatrix, and asked for it; that he searched for the will, and did not know where it was; that no one could have taken it out of his safe without his knowledge or consent; that the testatrix called at his office as many as three or four times for the will, and he had loaned it to her, or let her take it, and that he could not tell how long she had kept it on such occasions before returning it; that he did not remember when she got it the last time, or that she returned it; that, if she returned it, he would have had it in his safe at the time of her death; that she did not send any one to him to get it; and that he knew she did not return it the last time she got it, and that he had not got it; that, at the last time she called on him, she was weak, and walked with difficulty.

His testimony on the subject is quite unsatisfactory. The testatrix was a person considerably advanced in years, and her last illness was of brief duration. About three days before her death, it appears that she told her daughter, Mrs. Strehlow, that she had not made any change in her will; that it should remain as she had made it, and "that Mr. Holzhauer has the will." Mrs. Otto testified that, on the Tuesday before she was taken sick, the testatrix stated to her how she had disposed of her property, and that "the will was at Holzhauer's;" and it was shown that three days before her death she made substantially the same statement to Ida Weisenberg; that she had frequently spoken to her about

In re Steinke's Will

the will, and on each occasion had said that the will was over to Holzhauer's," and on the evening of that day she made the same statement, in substance, to Sophia Wichmann. Mrs. Lempke testified that the testatrix, then being quite weak, told her, three days before her death, that, if she "could get up again, she would go to Holzhauer's, and have her will qualified or destroyed or changed," and told her that the will was at Holzhauer's. After her death, it could not be found with her papers or effects.

The evidence, as to her clear and repeated declarations, satisfactorily shows that she believed from a period of time when she became unable to go and get it, up to the time of her death, that Holzhauer still had and held her will. If it satisfactorily appeared that Holzhauer returned the will to her, and it was last known to be in her possession, and after her death could not be found, a prima facie presumption would arise that she had destroyed it, with the intention of revoking it, a presumption subject to be rebutted by competent evidence. Her declarations upon the subject of the existence or nonexistence of the will and its custody, up to or within a short time previous to her death, are competent evidence to rebut such presumption, and to show that she died in the belief that the will was still in existence as a valid disposition of her estate.

This subject is fully considered in In re Valentine's Will, 93 Wis. 45, where the authorities on this subject are collated and cited by CASSODAY, C. J., and the point vital on this appeal is expressly ruled.

If Holzhauer delivered to her the will and she failed to return it, we think that the evidence is sufficient to rebut any presumption of revocation by its destruction by the testatrix or by her authority. If he is mistaken in this respect and the will was left with him, then, and in any view that may be taken of the evidence, it was properly regarded as a lost will and established as such, and the judgment of the

Bumbalek and another vs. Peehl and another.

circuit court that it be allowed and admitted to probate in the county court, as provided by law, is correct, and should be affirmed.

By the Court. The judgment of the circuit court is affirmed.

BUMBALEK and another, Plaintiffs in error, vs. PEEHL and another, Defendants in error.

December 18, 1896 — February 2, 1897.

Writ of error: Limitation of appeals.

The provision of ch. 215, Laws of 1895, prohibiting appeals to the supreme court from judgments in which the amount involved, exclusive of costs, is less than $100, unless the judge of the trial court shall certify that certain material questions, therein specified, are involved, does not apply to writs of error.

ERROR to review a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Affirmed.

The case is sufficiently stated in the opinion.

F. J. Lenicheck, for the plaintiffs in error.

For the defendants in error the case was submitted on the brief of Sylvester, Scheiber, Riley & Orth.

CASSODAY, C. J. This action is to recover for an alleged instalment of rent, commenced in justice's court, and from the judgment rendered therein the case was taken by appeal to the superior court of Milwaukee county, where the case was retried. At the close of the plaintiffs' testimony the court directed a verdict in favor of Peehl and wife for $43.15, and to reverse the judgment entered thereon the Bumbaleks sued out this writ of error.

The defendants in error have moved to dismiss the writ, as being prohibited by ch. 215, Laws of 1895. Since that

Bumbalek and another vs. Peehl and another.

chapter only relates to appeals, and not to writs of error, it is manifest that the case at bar does not come within its prohibition. True, the word appeal is sometimes used broadly to denote the general nature of appellate jurisdiction, and in that sense may include a writ of error, and so a writ of error may, in such broad sense, include an appeal. But the one had its origin in the civil law, and the other in the common law. Wiscart v. Dauchy, 3 Dall. 327. The distinction between them has generally been maintained in practice, and is expressly recognized by our statutes.

Whether a writ of error will lie in a case like this was not argued by counsel, and is not here determined. While our constitution prevents the legislature from prohibiting writs of error, yet that provision did not enlarge the scope of the writ as it existed when the constitution was adopted, nor prevent the legislature from making reasonable regulations in respect to its use. Const. Wis. art. I, sec. 21; Jackson v. State, 81 Wis. 131, and cases there cited; Smith v. Packard, 12 Wis. 371; Lombard v. Cowham, 34 Wis. 300; Crocker v. State, 60 Wis. 553, and cases there cited; State ex rel. Larkin v. Ryan, 70 Wis. 683. For the purposes of this case, we assume that the writ of error properly brought the record before us for consideration, and hence deny the motion to dismiss the writ.

The bill of exceptions is not certified to contain all the evidence. It does state that the defendants offered no evidence. The only exception in the record is to the direction of a verdict in favor of the plaintiffs. Upon this record we cannot say that such direction was error. On the other hand, such direction of the verdict seems to have been correct.

By the Court. The judgment of the superior court of Milwaukee county is affirmed.