Estate of Johnson

A will destroyed in the presence and within the observation and with the consent of the destroyer, upon the suggestion of a disinterested friend that it was “of no further use and would better be destroyed, ’ ’ cannot be deemed “a fraudulently destroyed” will, within the meaning of section 1339 of the Code of Civil Procedure, so as to be entitled to probate under section 1338 of the same code, where it appears that such suggestion was honestly made in the full but erroneous belief, concurred in by the' testator, that such will was worthless, and that a copy thereof signed by the testator and attested by only one witness was a legal and valid will, and there is nothing to show that any of the testator’s heirs or other persons interested in his estate in any way connived at such destruction of his will, or had any knowledge of it until long afterward.

*426 A fraud committed by a third person furnishes no ground of relief at law or in equity against one who did not participate in, or connive at, its commission.

To entitle a will to probate as having been “fraudulently destroyed” in the testator’s lifetime, within the meaning of section 1339 of the Code of Civil Procedure, it must…