71 N.J. Eq. 214 | N.J. Super. Ct. App. Div. | 1906
The contested paper was written in ink, and duly executed by' Annie R. Wood, as and for her last will and testament, November 12th, 1898, and thereafter remained in her possession until her death, January 28th, 1905.
Three days before her death, while confined to her bed, she took from under her pillow some keys, which she handed to her maid, and.- directed her to lock up everything and then give the keys to 'her physician for safekeeping. The drawers of the bureau in which the will was afterward found being already locked, the servant locked the closets in the room and gave the keys to the physician, who retained them until two days after Mrs. Wood’s death, when he gave them to a Mr. Craig, a counselor-at-law, who had represented Mrs. Wood in her lifetime.
Portions of this will had been erased by drawing pencil lines through three paragraphs, and partly through a fourth. The orphans court of Burlington county decided that the erasures did not amount to a revocation and admitted the will to probate as originally drawn, ignoring the erasures; from that determination this appeal was taken,
The clauses of the will which are entirely erased are the following:
(a) “I give and bequeath to my nephew, Frank Shaw, one thousand dollars.” (6) “X. give and bequeath to my waiting maid, Mary Muss, as a token of my appreciation, of her good qualities and kind attentions, my pastel picture, and five hundred dollars.” (c) “I give and bequeath to my friend, Charles Stokes, of Beverly, New Jersey, all my books.”
The item partially canceled reads as follows:
“I give and bequeath to James Wood, mother Wood’s picture and the gold watch of his brother, my beloved deceased husband.”
The canceling lines of this paragraph begin after the word “picture,” and their effect is to erase all of that part of the paragraph which gave the watch and to leave in force the bequest of the picture.
An examination of the will shows that the erasures were intended to be an effectual cancellation of the parts to which they apply, there being three or more lines drawn through each of the parts intended to be eliminated, and the act to be inferred from the result appearing is an erasure with intent to obliterate the portions subjected to the pencil marks.
The first point raised by the respondents is that it does not appear that the erasures were made by the'testatrix, or in her presence and by her direction and consent, as required by the
Under such circumstances, if a will be found canceled in whole or in part, the presumption is that the alterations were the acts of the testator, done animo camcellcmdi. Smock v Smock, 11 N. J. Eq. (3 Stock.) 156; In re will of Kirkpatrick 22 N. J. Eq. (7 C. E. Gr.) 463; In re will of White, 25 N. J. Eq. (10 C. E. Gr.) 501. There is no evidence in this case which tends in the slightest degree to overthrow ox repel this presumption.
The cancellations being thus chargeable to the testatrix, we must next consider the question, were they made animo revoca/ndi. The respondents insist that as the erasures were made with a pencil instead of ink, they are, prima facie, deliberative, and not final, as would be the presumption if done with ink, and in support of this cite Francis v. Grover, 5 Hare 39. In that case the question arose' on an application for a new trial, the trial court having refused to charge the jury that a pencil line drawn through the words of bequest was, prima, facie, final, and not deliberative. The report of the case throws no light upon, the character of the erasure, and an inspection of it might have justified the court .in submitting the question to a jury. The vice-chancellor hearing the application said that, omitting the case of Mence v. Mence, 18 Ves. 348, it appeared to him that, in certain cases which he mentioned and to which I shall refer, “the learned judges have all considered that a pencil alteration may be final or deliberative, and that from the nature of the act they considered it, prima facie, deliberative, and not final.” The eases cited by the vice-chancellor do not,
On the question-whether a pencil erasure is entitled to the same prima facie presumption as if done in ink, Dickinson v. Dickinson, 2 Phillim. 173, is- quite in point. The alterations were
The manner in which the erasure is made, whether with ink or pencil, the extent of it, and its effect upon other uncanceled portion's of the will, may prevent the presumption of finality, but such repellant circumstances apply with equal force to ink or pencil cancellations.
In my judgment a clear and distinct erasure made with a pencil is entitled to the same prima, facie consideration as if made with a pen and ink. As was said by Chief-Justice Elliot in Woodfill v. Patton, 76 Ind. 575, “it cannot be any the less a mutilation if the signature is marked out with a pen, pencil or other implement which erases, cancels or obliterates.” In that case the signature was blackened and marked by a common lead pencil.
In the case we are considering the erasures bear every indication of being the final act of the testatrix; repeated lines are drawn through the portions intended to be canceled in a way that clearly indicates an intent to obliterate them. The paper discloses no indication that the act was equivocal, either by marginal notes or interlineations intended to supply the parts erased; omitting the excised portions creates no ambiguity in what remains un canceled, and nothing appears from which a want of finality may be inferred. The prima facie presumption that the acts of the testatrix were final and not deliberative, is strengthened by the testimony from which it appears that Mary Muss, whose legacy was one of those canceled, died more than a year before the testatrix, and as this gift was to a servant as a reward for faithful attentions, and manifestly a personal one, her death removed the object of the bounty and furnishes a good reason for the revocation. The legacy to James Wood was erased in part, so much of .it as gave him the watch of the deceased husband of the testatrix being canceled, while that relating to his mother’s picture was allowed to stand uncanceled, al
As to the remaining legacies revoked by the cancellations, two in number, it appears that the testatrix had expressed her dissatisfaction with the two legatees, and it is a reasonable inference that she had changed her intentions regarding her bequests to them.
My conclusion is that the erasures were made by the testatrix animo revocandi, and that the decree below should be reversed and the will probated with the canceled parts omitted, it being well settled that the cancellation of a part of a will revokes the legacies canceled, and does not affect the residue of the will.
■ An appeal was also taken ■ from the decree of the orphans court allowing a counsel fee to the respondents. It cannot be said that the contest was without merit, and I am of the opinion that such allowance was proper, and therefore that appeal will be dismissed. ■ ■ .