There is no good reason a testator should be decreed to have died intestate, and his wishes, solemnly committed to writing, be defeated by the loss or destruction of what is, after all, merely the best, and not the only, evidence of his desires. In re Eder's Estate, 29 P.2d 631, 634-635 (Colo. 1934). To ignore a testator's desires when the testator has done all in his power to comply with the laws concerning wills would be an injustice.

The Colorado Supreme Court considered the question under its statute which is similar to Utah's, but does not contain language dealing with fraudulent destruction, in In re Eder's Estate. The court noted: 94 Colo. 173, 29 P.2d 631 (1934). And a will, once validly made and published, remains a will, although the writing, the best evidence of it, in the absence of intent to revoke, be lost or destroyed. Thus considered, the word "existence" in our statute has to do with the will of the testator as manifested by his intent that the terms of the writing shall be carried out on his death.

Any presumption arising from the fact that a will left in the custody of the testator, and not found upon his death, has been revoked by him, is always rebuttable, and post-testamentary declarations of the testator are admissible and sufficient to overcome such presumption. (28 R. C. L., sec. 387; 68 C.J., sec. 759; Miller's Will, 49 Or. 452, 90 P. 1002, 124 Am. St. 1051, 14 Ann. Cas. 277; Sweetman's Estate, 185 Cal. 27, 195 Pac. 918; Eder's Estate, 94 Colo. 173, 29 P.2d 631.) The provisions of a lost will may be proved by secondary evidence.

We have interpreted this statute to hold that a potential witness is disqualified if, at the time of the proceedings, he is a party to the suit, or he will gain or lose by the direct legal operation of the judgment, and his testimony is being offered against an heir, legatee, devisee, or other person listed in the statute. See In re Eder's Estate, 94 Colo. 173, 180, 29 P.2d 631, 634 (1934) ("the statute contemplates either a party or one who has a direct interest") (emphasis added); see also Wise, 625 P.2d at 366 (stating that "parties and other interested persons are . . . barred from testifying"). A contest of a probate falls within the statute because the purpose of the suit is to divest legatees and devisees of all rights in the estate of the testator.

In thus holding this court adopted a minority rule but stated that it felt compelled to do so because Illinois case law interpreting a similar statute was also to such effect. The Shapter rule has been adhered to by this court in Eder v. Methodist Ass'n., 94 Colo. 173, 29 P.2d 631, and Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032. Under these circumstances we are accordingly disinclined to overrule a line of cases which clearly represent the well established law on this subject in this state as of the time the instant proceeding was commenced and tried.

The burden is upon the proponent of a will to meet requirements of statute if the will is to be admitted to probate. Estate of Eder, 94 Colo. 173, 29 P.2d 631. And where, as here, proof of due execution has been made and no evidence presented to the contrary, it is the duty of the court to hold as a matter of law that the will was properly executed, and to remove that question from the jury's consideration. Estate of Piercen, 118 Colo. 264, 195 P.2d 725; Estate of Deeds, 133 Colo. 85, 293 P.2d 643.

There is no proof of the existence of the alleged will at the time of Mr. Varnum's death. There is proof that a will, the contents of which are unknown, was properly executed before the witnesses Carter and Shall, but there is no proof of the contents of the will they attested. The testimony of Col. Danks was such as to fall short of the proof required in Eder v. Methodist Ass'n, 94 Colo. 173, 29 P.2d 631. The standard there laid down is that the proof must be "clear and strong." Both were lacking in Danks' deposition and in his testimony at the trial.

* * *" See also, In re Flood's Estate, 47 Cal.2d 809, 119 P.2d 168; Caudill v. Loar, 293 Ky. 223, 168 S.W.2d 757, 758; Moore v. Williams, 30 Tenn. App. 479, 207 S.W.2d 590 (the proponent must show to the satisfaction of the court that the will had not been revoked); Webb v. Lohnes, 101 F.2d 242 (the proponent must show by a preponderance of the evidence that the lost will was not destroyed by the testatrix with the intention of revoking it); Koester v. Jennings, 334 Ill. 107, 165 N.E. 650; Goodale v. Murray, 227 Iowa 843, 289 N.W. 450; In re Eder's Estate, 94 Colo. 173, 29 P.2d 631. It is also held that a presumption of revocation arises when a will which was in the possession of the testator cannot be found, even though persons interested in establishing intestacy may have had opportunity to destroy the will. Moore v. Williams, supra; In re Beckerle's Will, 46 NYS2d 271.

* * *" Hull v. Cartin, 61 Idaho 578, 105 P.2d 196, 200-201. See, also, In re Calvin's Estate, 188 Wn. 283, 62 P.2d 461, 463, citing earlier Washington decisions, In re Eder's Estate, 94 Colo. 173, 29 P.2d 631, 635, In re Thompson's Estate, 185 Cal. 763, 198 P. 795, 796, and Johnson v. Bruner, 203 Okla. 201, 219 P.2d 211, 213. We agree with the Supreme Court of Idaho. A court may not establish a lost will on the basis of conjecture alone; the statute provides that two credible witnesses must testify as to the provisions of the lost will; and we hold that the testimony must be separately evaluated.

This well-established rule is stated in 57 American Jurisprudence, page 377, section 549, as follows: "Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi." This rule has been recognized by our court in Eder v. Methodist Episcopal Church Ass'n, 94 Colo. 173, 29 P.2d 631, in which we said: "Also we feel it proper to say that the universally recognized presumption, that a will that may have been in the testator's possession and cannot be found at his death was destroyed animo revocandi, may be rebutted * * *."