trans. 1969); Patrick v. Bedrick, 169 Conn. 125, 362 A.2d 987 (1975); Matter of Modde's Estate, 323 N.W.2d 895 (S.D., 1982); Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958); Harris v. Harris, 216 Va. 716, 222 S.E.2d 543 (1976); In re Murray's Estate, 404 Pa. 120, 171 A.2d 171 (1961); Duvergee v. Sprauve, 413 F.2d 120 (3d Cir. 1969); In re Montgomery's Will, 121 Vt. 344, 162 A.2d 344 (1960); In re Salter's Estate, 209 Or. 536, 307 P.2d 515 (1957); Lovell v. Lovell, 272 Ala. 409, 132 So.2d 382 (1961); In re Kanera's Estate, 334 Mich. 461, 54 N.W.2d 718 (1952). Moreover, in Jones v. Mason, 234 La. 116, 99 So.2d 46 (1958) this court applied that presumption of revocation in a case in which a testator executed his will in multiple copies, one original and several carbon copies.

"It must, we think, be taken for granted, therefore, that the will when last seen was in the custody of the testator, and since it could not be found after his death a legal presumption is raised that it was destroyed by him with the intention of revoking it, and the burden of proof is on the proponent to overcome this presumption." In re Salter's Estate, 209 Or. 536, 307 P.2d 515, 522. In the instant case it must be taken for granted, that the will when last seen was in the custody of the deceased.

However, where a will is left in the custody of the testator, or is readily accessible to him, or is last seen in his possession, and cannot be found after his death, a presumption arises that he destroyed the will with intent to revoke it. In re Rodda's Estate, 152 Cal.App.2d 300, 313 P.2d 582; In re Salter's Estate, 209 Or. 536, 307 P.2d 515; In re Bond's Estate, 172 Or. 509, 143 P.2d 244; In re McCoy's Estate, 49 Or. 579, 90 P. 1105; Chenoweth v. Cary (Ohio App.) 31 N.E.2d 716; McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570; 95 C.J.S. Wills §§ 385c, 403; 57 Am.Jur., Wills, § 549; Annotations 3 A.L.R.2d 949, 172 A.L.R. 354, 79 A.L.R. 1493. The presumption is rebuttable and oral declarations of the testator tending either to support or rebut the presumption are admissible on the issue of revocation.

Once the presumption is invoked, the burden is on the proponents to prove that the will has not been revoked. Salter v. Salter, Adm., 209 Or. 536, 307 P.2d 515 (1957). Here, we have little to go on. The trial judge stated that decedent probably believed that the unsigned copy in his safe was the original of the will.

The question, then, is what did the testatrix intend when she marked up the will as she did? Just as there is a presumption that when a duly executed will which was in the possession of the testator cannot be found after the testator's death it was revoked by the testator, Salter v. Salter, Adm., 209 Or. 536, 307 P.2d 515 (1957), so also a mutilated will which was in the testator's possession is presumed to have been mutilated by the testator with the intent to revoke it. In re Bond's Estate, 172 Or. 509, 143 P.2d 244 (1943); Price v. Wood, 254 Or. 259, 456 P.2d 500 (1969).

While subject to scrutiny on account of his interest, the testimony of Fry that decedent mentioned the will to him on his last visit with him in the hospital in October 1968 is entitled to consideration. If the will was then in Condon, as the probabilities indicate, decedent did not thereafter have access to it and if it was destroyed, misplaced or lost subsequently, it was not by the testator's act. See Salter v. Salter, 209 Or. 536, 307 P.2d 515 (1957), where there was substantial evidence of an intent by the testator to change his will. We hold that the proponent of the will has carried his burden of proof; that the prima facie presumption of destruction has been overcome by evidence which satisfies us that the will was not revoked by the testator.