The opinion
TRAYNOR, J.
I dissent. There is no evidence in the present case to support the finding that the codicil was in existence at the time of the testator’s death. No one saw the codicil after its execution and delivery to the testator on April 28, 1941. It did not appear amongst the papers that the testator kept in his safe-deposit box in which was found after his death, the will of April 1, 1938, a codicil of July 28, 1939, a so-called “Second Codicil” not legally executed, and deeds to his children. There is no explanation for its disappearance between the time of its execution and the death of the testator. No claim is advanced that it was destroyed by public calamity, and any contention that the appellant fraudulently destroyed it in the testator’s lifetime is dispelled by the trial court’s finding that it was in existence at the time of his death.
The respondent relies upon evidence with regard first to a conversation between herself and the testator concerning Rita Pox, then to the delivery of testator’s money belt to respondent’s husband, and finally to a conversation between appellant and Mrs. Della Bristol, to prove the existence of the codicil at the testator’s death.
In the first codicil the testator’s son Walter was given a life estate in certain real property, with remainder to two of Walter’s daughters. A third daughter, Rita, who had disappeared and not been heard from, was not given an interest in the remainder in view of the understanding, that her two sisters would execute an agreement giving her an equal interest should she return. Rita returned and the lost codicil gave her an interest in the remainder equal to that of each of her two sisters. Some time after the execution of this codicil respondent had a conversation with the testator, as to which respondent testified as follows: “Q. What did he say? A. Well, he said, ‘I must fix it so Rita can get hers,’ and I said, ‘Why, dad, don’t you remember, you had Mr. Lake fix that up.’ He said, ‘Oh, I had forgotten all about it.’ He was getting very forgetful, he could not seem to remember *232 those things. Q. That was two months prior to his death? A. Yes, two or three months. Q. Could it have been as early as February of this year? A. Well, it might have been, it was February—I was over there February 20th, my son was home on furlough and he and I went over to see his grandpa. Q. Then when is the next time you went over? A. I went over about every two or three weeks. Q. Your recollection is now that this conversation about Bita Fox took place-A. After February. Q. And about two months before September 30th? A. Well, it might have been longer, it is in there between those dates. Q. By the Court : What was it you said about the matter having been taken care of for Bita ? A. You see, she had disappeared and he had forgotten that he had Mr. Lake fix up that codicil naming her, and he said, ‘Did Charley ever have those girls sign a paper that would give her her share?’ He said, ‘I want her to have her share.’ And I said, ‘Why, Dad, you had that fixed up in Mr. Lake’s office.’ Q. What did he say about it? A. He just said that he had forgotten about it, that he wanted to make sure that Bita was going to get her part of it. Q. By Mr. Lake : And when you mentioned the fact that he had taken care of it in my office, what did he say? A. Just that it had slipped his memory, that he had forgotten all about it. ’ ’
This evidence given its utmost weight would prove only that the testator believed that the codicil was in existence at the date of the conversation some two or three months before his death. It in no way proves that the codicil was in existence when the testator died, or even that at any time after the conversation he did not revoke the codicil.
The testator at all times wore a belt containing a large sum of money. Two or three days before his death, after respondent had warned him of the danger of keeping the money belt on, the testator delivered it to respondent’s husband, Mr. Charles G-. Young, for safekeeping. Mr. Young placed the money in his safe-deposit box and properly accounted for it after the testator’s death. There is nothing in this evidence that has any bearing upon the existence of the lost codicil at the time of the testator’s death. It is apparently the view of respondent that since the testator named her as executrix in the lost codicil, he confirmed that choice when he turned over his money belt to her husband, Mr. Charles G. Young, for safekeeping. There is nothing in the record, however, to indicate that the testator was think *233 ing in terms of the administration of his estate or that he turned his money belt over to Mr. Young, who was not only decedent’s son-in-law but an attorney, rather than to any one else for any other reason than that he could trust Mr. Young with its safekeeping during his illness.
According to the testimony of Mrs. Della Bristol, the wife of one of the testator’s sons, the appellant made the statement to her eight days before the death of the testator that “if she could get her fingers on the will and the deeds she would tear them all up except Walter’s.” There is nothing here to suggest that the will was in existence at the time of the testator’s death. Nor would this evidence by itself support a finding that appellant destroyed the codicil, and there is no indication in the findings that she did so. There is no evidence that she ever saw the codicil or had any opportunity to destroy it. The bank records show that no one but the testator ever had access to the testator’s safe-deposit box in which he kept his valuable papers, and in which the will, the first codicil, codicil number two, and the deeds were found after his death. Appellant’s character, however it is evaluated, and her motives, however suspicious they may appear, cannot stand as proof of the fraudulent destruction of the will when there are no facts or circumstances that make such a destruction plausible. Her own testimony did nothing to establish such a destruction, and it is therefore immaterial whether or not the trial court believed her, for a fact is proved by affirmative evidence, not by disbelief of a witness. (Moulton v. Moulton, 178 Minn. 568 [ 227 N.W. 896 ]; Hyslop v. Boston & Me. Ry., 208 Mass. 362 [ 94 N.E. 310 ; 21 Ann. Cas. 1121]; Boice-Perrine Co. v. Kelley, 243 Mass. 327 [ 137 N.E. 731 ]; see 23 C.J. 51; 32 C.J.S. 1134.)
A finding of fact cannot be sustained if no evidence appears in the record from which the trier of facts could reasonably infer that it is more probable that the fact exists than that it does not. The suggestion in the majority opinion that evidence may be overwhelming in its persuasiveness even though it “may appear relatively unsubstantial—if it can be reflected at all—in a phonographic record” is in effect a suggestion that an appellate court may disregard the manifest unpersuasiveness of the evidence it is charged to review. If an appellate court could attribute reality to the phantom of a persuasiveness that does not survive in the record, it *234 would no longer be bound by the record itself and could even affirm a judgment that was not sustained by any proof.
The relation between the presumption of revocation, invoked in the majority opinion, to Probate Code section 350 requires clarification. Section 350 of the Probate Code provides: “No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator, or shown to have been destroyed fraudlently or by public calamity in the lifetime of the testator, without his knowledge.” Some confusion has attended the application of this section since the majority opinion in Estate of Sweetman, 185 Cal. 27 [ 195 P. 918 ], first invoked the presumption that a will has been revoked when it is known to have been in the possession of the decedent but cannot be found after his death. Apparently the presumption was regarded as arising independently of section 1339 of the Code of Civil Procedure, the antecedent of Probate Code section 350, for the will was admitted to probate not simply because the declarations of the testatrix showed that she had not revoked it and thus had the effect of overcoming the presumption ( 185 Cal. 27, 33 ), but also because under section 1963, subdivision 32 of the Code of Civil Procedure, a thing once shown to be in existence is presumed to continue in existence so long as things of that nature usually exist. ( 185 Cal. 27, 34 .) It would not have been necessary to invoke the presumption of continued existence if in the opinion of the majority, the requirements of section 1339 had been satisfied by proof of nonrevocation. In a vigorous dissent, Justice Olney took the view that proof of nonrevocation was immaterial, since existence of the will at the time of the testator’s death had to be established, and that the very purpose of section 1339 was “to make it impossible, to probate an unproduced will by proof that it was in existence prior to the testator’s death eked out by any presumption that it continued to exist until he died.”
Subsequently in Estate of Ross, 199 Cal. 641, 647, 648 [ 250 P. 676 ], the court overruled the holding in Estate of Sweetman that a will once in existence is presumed to continue in existence, declaring: “If the rule were otherwise all that would be necessary in order to prove a lost or destroyed will would be to show that the will was in the possession of the testatrix some time, any time, prior to her death with no apparent intervening cause for destruction *235 or revocation, and thus rebut the presumption of revocation and entirely nullify the requirements of said section 1339.” Without the presumption of continued existence the order admitting the will to probate could not have been affirmed in the Sweetman case, for there was nothing else to prove the existence of the will at the time of the death of the testatrix. Nothing in that case, therefore, affords any support for the proposition that proof of nonrevocation alone is sufficient to comply with Probate Code section 350.
While the overruling of Estate of Sweetman did much to dispel the confusion engendered by that ease, the relation of Probate Code section 350 to the presumption of revocation that is said to arise in these cases still requires clarification. If section 350 provided simply that a presumption of revocation arises in the case of a lost will, it would be necessary only to rebut the presumption to prove that the will was in existence at the time of the testator’s death. A presumption of revocation independent of section 350 becomes superfluous, however, if the very existence of the will at the time of the testator’s death must be proved. While proof of that existence establishes the fact of nonrevocation, the converse does not follow that a will exists because there is no revocation thereof. It would therefore be idle to rebut the presumption of revocation if there were no proof that a will existed at the time of the testator’s death.
Section 350 cannot reasonably be construed as creating a presumption of revocation. It is concerned, not with the rules governing revocation, which are specifically set forth in section 74 of the Probate Code, but with the procedure for establishing a lost or destroyed will. (Estate of Patterson, 155 Cal. 626, 633-638 [ 102 P. 941 , 132 Am.St.Rep. 116 , 18 Ann. Cas. 625, 26 L.R.A.N.S. 654 ].) Compliance with the substantive provisions that determine the status of the will as an executed instrument is not enough to render the will operative as a conveyance. A will cannot be given in evidence as the foundation of a right or title unless it has been duly probated (Estate of Patterson, 155 Cal. 626, 636 [ 102 P. 941 , 132 Am.St.Rep. 116 , 18 Ann.Cas. 625, 26 L.R.A.N.S. 654 ]), and section 350 prescribes the requirements that must be satisfied before a lost will can be probated. It is therefore not controlling that under the substantive provisions of the law, the will has been duly executed and has not been revoked, for it cannot be probated if the requirements pre *236 scribed in the code for the probate of wills cannot be met. The requirement of proof that the will existed at the time of the testator’s death cannot be translated into a requirement of proof of nonrevocation. Such a translation would render meaningless the provision regarding wills destroyed fraudulently or by public calamity, for under Probate Code section 74 there can be no revocation under such circumstances. Indeed, the amendment with respect to wills destroyed by public calamity was held applicable in Estate of Patterson, 155 Cal. 626 [ 102 P. 941 , 132 Am.St.Rep. 116 , 18 Ann.Cas. 625, 26 L.RA.N.S. 654], to a will destroyed before the adoption of the amendment, on the ground that the will had not been revoked. Had the destruction amounted to a revocation of the will, the estate would have vested in the heirs and the subsequent amendment could not have served to take the estate from them. Since the probate procedure related simply to the remedy and not to the foundation of the rights of those claiming under the will, the amendment was held applicable. The will was admitted to probate, not simply because it was unrevoked, but because by virtue of the amendment a will destroyed by public calamity without the knowledge of the testator could be probated even though it was admittedly not in existence at the time of the death of the testator.
In section 350 of the Probate Code, the Legislature has exercised the greatest cahtion not to leave the way open for the establishment of spurious wills or the probate of wills that testators have intentionally destroyed without leaving adequate proof of such destruction, even going so far as to preclude probate of a will that is lost or destroyed, other than by fraud or public calamity, before the death of the testator. (Estate of Johnson, 134 Cal. 662 [ 66 P. 847 ]; Estate of Patterson, supra; Estate of Kidder, 57 Cal. 282 .) It has placed upon the testator the responsibility for the safekeeping of his will until his death. At the same time it has recognized that once the testator dies there is greater risk of loss or destruction of his will, and it has therefore sought to insure that his wishes would nonetheless be carried out, by providing that his will need not be in existence at the time of probate so long as there is proof of its existence at the time of death and proof by two witnesses of its provisions. It is for the Legislature to choose or modify the course it deems proper in this regard, not for the court to undertake *237 modifications merely because in its view the Legislature has acted in excess of caution.
The judgment should be reversed.
Curtis, J., and Edmonds, J., concurred.
Appellant’s petition for a rehearing was denied December 27, 1943. Curtis, J., Edmonds, J., and Traynor, J., voted for a rehearing.