This was a chancery case wherein the complainants below sought to establish as the true last will and testament of one Ed Thompson, deceased, a purported copy of a will shown to have been executed by deceased about two and a half years prior to his death, the contention of petitioners in the case being that the original will had been suppressed, lost or destroyed by those whose interest would be enhanced through the deceased's intestacy.

No point was raised as to the propriety of such a proceeding in a court of chancery, although in the case of *Page 837 Brown v. Nugent, 68 Fla. 587 (decided by this Court without opinion in 1914) an exactly similar case was brought in the probate court in the first instance and thereafter decided by the circuit court on appeal. Ed Thompson, the alleged testator, died September 12, 1930, so the present case is not controlled by the 1933 Probate Act. See Section 2, Chapter 16103, Acts of 1933. Had Thompson died after October 1, 1933, Section 64 of said Chapter 16103, Acts of 1933, would undoubtedly be applicable, but whether that section would constitute an ouster of chancery jurisdiction otherwise obtaining, is a question that must be left to be decided in some future case requiring that point to be ruled on.

The bill of complaint in the present case set up the fact that after the death of Ed Thompson, the defendants took possession of certain of his properties and estate, which the bill alleged had been legally disposed of by an alleged lost, destroyed or suppressed will which conferred on complainants certain rights in the properties as estate which defendants were undertaking to seize and enjoy in derogation of the testator's alleged lost or destroyed will. Accordingly, the bill of complaint rested, in its primary sense, on the jurisdiction of the chancery court to ascertain and declare the fact that defendants were trustees ex maleficio of an estate that had been disposed of by will to parties having an adverse interest to that being asserted and enjoyed by defendants. And as incident to that relief, the bill prayed that the court ascertain and declare whether or not Thompson died testate or intestate, and if testate, that it ascertain and declare that the purported copy of his will was his true will, to be probated in lieu of the original which was alleged to have been lost or destroyed. So it appears clear that the present suit was properly founded in equity, although no point is raised by either party to this appeal on that score. *Page 838

The court below, in a lengthy opinion giving his views and findings both as to law and fact in this case, expressly found that the evidence in this case does not show that the will sought to be established has been lost or destroyed by the defendants or any one else, and that while the deceased had undoubtedly made several wills during his lifetime, that the last declaration of the deceased prior to his death was to the effect that he did not have a will but that he wanted his property to go to his two daughters who would inherit it if he died intestate. I think the chancellor's findings are amply sustained by the evidence. I attach little importance to the so-called presumption of revocation as applied to this case, because I think it will be found upon analysis of the authorities that what is referred to as a presumption, is in reality not a true legal presumption but is only an inference of fact that is authorized (but not required) to be drawn, very much as the inference is authorized (but not required) to be drawn in law that a person found in possession of recently stolen property is the thief thereof. It must be shown by facts and circumstances that a will was actually fraudulently destroyed or otherwise lost or suppressed. This can be inferred from evidence but is not to be presumed from mere proof of opportunity to do wrong.

TERRELL, J., concurs.