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 '''Opinion filed June 8, 1921. Rehearing denied July 23, 1921.'''

Appeal from the District Court of Ramsey County, Buttz, J.

Defendants appeal from an order overruling a demurrer to a petition for the probate of a will alleged to have been fraudulently destroyed.

Reversed and dismissed.

W. M. Anderson, Cuthbert, Smythe & Wheeler, and Middaugh & Cuthbert, for contesting respondents and appellants.

"The construction placed upon the statute by the courts of the state from which it was adopted is regarded as persuasive, and indeed, is entitled to very great weight, with the courts of the adopting state, but not as conclusive." From Text, 36 Cyc. 1156.

If the will was lost or destroyed after her death, it must be alleged and proved to have been in existence at the time of her death; if it was lost or destroyed before her death, it must be alleged and proved to have been fraudulently destroyed in her lifetime." § 1339 Code of Civ. Proc.; Estate of Kidder, 57 Cal. 282; Estate of Johnson, 134 Cal. 662.

"No will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator." § 8643, Comp. Laws, of 1913, N. D.

"Express revocation of a will can only be shown by evidence of some of the acts designated by the statute, and unless revoked by another instrument, as thereby prescribed, the will itself must be destroyed or bear some marks of defacement of spoilation, manifesting the intent to revoke. Graham v. Birch, (Minn.) 49 N. W. 697; 40 Cyc. 1171-1173.

"Under such a statute, in order to prove a lost or destroyed will, the proponent must prove either that the will was actually in existence at the time of the testator's death, or that it is in existence in contemplation of law, which it would be if destroyed under the conditions stipulated in the statute." Note Re Francis, Col. 1, 50 L. R. A. (N. S.) 863.

Adamson & Thompson, and Fisk, Murphy & Nash, for respondent.

"One lacking testamentary capacity is not competent, by means of an attempted testamentary act, to revoke a prior will." In re Will of David Goldsticker, 18 L. R. A. (N. S.) 99. 192 N. Y. 35, 84 N. E. 581; Case