1 Mills Surr. 313 | N.Y. Sur. Ct. | 1899
The decedent by will dated March 23, 1880, gave to his son and daughter in equal shares his estate and appointed both of them his executors. In opposing the probate of this will the contestant has put in evidence a trust deed executed by the decedent on July 19, 1897, whereby he conveys “ all and singular my property and estate of every kind and nature whatsoever, whether real, personal or mixed, wherever the same may be,” to be held in trust during decedent’s life for his use and benefit and that of his children, and after his death, after a special allowance to his son for past services, to pay over to him one-half of the capital and hold the other half in trust for his daughter during her life. The trust deed also contains the following provision: “And I hereby revoke, annul and cancel any last will and testament by me heretofore made, sealed, subscribed, published and declared as and for my last will and testament.” The trust deed was not executed with the formalities prescribed by law for the execution of wills. It appears from the petition that the decedent left no real estate, but a considerable personal estate, and that both the legatees, who were his only issue, survived him. Contestant claims that by the execution of the trust deed containing the last-mentioned clause the will of 1880 was revoked under the provisions of sections 47 and 48 of article 3, title 1, chapter 6, part II, of the Revised Statutes. Section 42 of the article above referred to provides that wills, “ except in the cases hereinafter mentioned,” can only be revoked or altered by another will or other writing when the latter is “ executed with the same formalities with which the will itself was required by law to be executed.” Sections 43 and 44 contain evidently the only exceptions above referred to, namely, revocation of a will by marriage and birth of issue or by the subsequent marriage of an unmarried woman. Sections 47 and 48, in my opinion, relate only to a revocation of devises or bequests contained in wills, and not to revocation of the wills
Probate decreed.