which was prepared by Edward F. Flynn, assisted by Fred E. Merrick, and that at the time it was made Flynn and Merrick had in their possession the prior will, and that in the office of Flynn, at Devils Lake, they destroyed the will dated September 19, 1916, by tearing the same to pieces and throwing the pieces away while the deceased was alive and that said act of destruction was done without consulting the deceased, William J. Morgridge, and without his knowledge or consent, and not in his presence, he being then confined in the hospital, and the same was done wholly upon the initiative of said Flynn and Merrick, and upon the belief that the will of September 19, 1916, was void by reason of the second will, which was subsequently held void; that by reason of the acts of Flynn and Merrick the said will dated September 19, 1916, was fraudulently destroyed, and the deceased was fraudulently deprived of his right to dispose of his property by will.
To the petition there was filed a demurrer on two grounds: (1) That the facts stated in the petition are not sufficient to constitute a petition as provided by law for the probate of a will. (2) That the facts stated do not show a fraudulent destruction of the will.
The petition for probate was drafted in view of the statute which provides as follows:
"No will shall be provided 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" during his lifetime. Comp. Laws, § 8643.
The manifest purpose of the petition was to show that the will had been fraudulently destroyed during the lifetime of the testator, and at the same time to excuse the destruction by showing that it was done in good faith. In this case Merrick, the petitioner, is put in a dilemma. If the facts stated do not show a fraudulent destruction of the will, then it cannot be admitted to probate. If the facts stated do show, as they do that Merrick was a party to the destruction of the will, then his petition must be denied because of the salutory maxim: "No one can take advantage of his own wrong." Fred Merrick cannot plead his own wrong as a reason for the allowance of a will giving a large estate to him and his family, none of whom are heirs of the deceased. Hence the demurrer must be, and it is, sustained, and the petition dismissed.
Reversed.
