¶1specially concurring:
¶2Although I agree with the result of the majority, I can not agree with their findings and reasoning. The facts and circumstances presented are insufficient to establish that the duplicate copy of the will was not destroyed by the testator animo revocandi. There is evidence that the duplicate copy was executed, placed in an Olivero envelope, and taken to the Netherton home, all of which occurred in August 1966. Three years later, however, when the Netherton farm house was destroyed by fire, there is no evidence of whether the duplicate copy of the will was yet contained in the Olivero envelope in Mrs. Netherton’s bureau drawer.
¶3Yet the uncontroverted circumstances here do not lend themselves to the application of the harsh, but well-settled, rule that, when a last will and testament can not be found at the death of the testator, it will be presumed to have been destroyed. As the majority recognizes, there exists no evidence of any intention on the part of Mrs. Netherton to revoke or revise her will. More importantly, the only original executed will was admitted to probate and remains part of the record, and destruction of a mere copy can not revoke a will. Therefore it is irrelevant to consider the presumption of destruction and the failure to present a duplicate executed copy.
¶4Certainly, it is unfortunate that some practitioners request that testators sign more than one copy of a will. Difficulties of the kind arising in this case could be avoided by having the testator sign only the original document. If it is deemed necessary, a photocopy of the executed original can readily be made. In this way, the testator will not be more easily deprived of the opportunity to revoke the will, wherever it is located, and the possibility is reduced that the testator will become confused and will destroy an executed duplicate copy, that might be in his or her possession, thinking it to be an original.
¶5Given my reasoning, it is unnecessary to decide the evidentiary issue. However, were it necessary to decide that issue, I would be compelled to dissent. Because a plaintiff has the burden of proving his case by a mere preponderance of the evidence, it is doubtful that any error of a trial court in a civil matter can ever be considered harmless. Furthermore, the presumption that the trial court considered only competent evidence has been rebutted by the fact that the trial court overruled two objections to testimony which the majority impliedly condemned as incompetent. As a result, I believe the majority’s discussion pertaining to this issue is dicta and should not be considered mandatory authority for future cases.