¶1(concurring specially). This is a proceeding for the probate of a will alleged to have been fraudulently destroyed during the lifetime of the testator. § 8643, C. L. 1913, provides:
“No will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the death of the testator, or is shown to have been fraudulently destroyed” during his lifetime.
¶2In construing a provision identical in language, the Supreme Court of California ruled:
“Where a will is alleged to have been fraudulently destroyed, the petition for probate of such will must state the facts and circumstances showing such fraud.” Estate of Kidder, 66 Cal. 487, 6 Pac. 326.
¶3The petition in this proceeding attempts to comply with this rule, and purports to set forth the facts and circumstances which it is alleged constitutes the fraud. In my opinion, however, the facts and circumstances set forth not only fail to constitute fraud, but show affirmatively that the will which it is sought to have admitted to probate was not fraudulently destroyed during the lifetime of the testator. See Estate of Kidder, 57 Cal. 282; Estate of Johnson, 134 Cal. 662, 66 Pac. 847.
¶4The respondent relies upon the decision of the New York Court of Appeals in Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88. That was an action in equity to establish a lost or destroyed will. It appears from the opinion in that case that New York (in addition to a statute like § 8643, supra) had a statute which provided:
“Whenever any will of real or personal estate shall be lost or destroyed, by accident or design, the supreme court shall have power to take proof of the execution and validity of such will, and to establish the same as in the case of lost deeds.” 35 N. Y. 654, 91 Am. Dec. 88.
¶5No such provision exists in this state.
¶6I agree that the order appealed from should be reversed, and the proceeding dismissed.