1 Pow. Surr. 590 | N.Y. Sur. Ct. | 1893
—The alleged will of Charles A. Forbes, deceased, offered for probate in the Surrogate’s Court of Cortland County, bears date on the 1st day of September, 1883. Under this will, William A. Bean, the petitioner, was named as executoit The will appears to have been executed in compliance with the statutory requirements sufficient to admit the same to probate. Upon the return to- the citation issued, Pauline B. Forbes, the widow of testator, and Annis R. Forbes and Mabel Forbes, daughters, by their special guardian, interposed objections to the probate of the mil upon, the following grounds r First. Incompetency of testator to make a will. Second. The will offered for probate is not the last, will and testament of Charles A. Forbes. Third. The same was procured to be made by fraud and undue influence. Fourth. That the writing offered for probate was duly revoked by the said Charles A. Forbes in his lifetime, in manner and form prescribed by the statutes of the State for the revocation of such instruments, and that the
The facts, as stated in the record of the case, present a strange state of circumstances, and should be carefully considered in order to arrive at a just conclusion as to whether the will offered for probate has been revoked, and whether it is the last will and testament of the deceased. Upon the question as to whether or not there was a subsequent will made revoking the will sought to be probated, Mrs. Sophia Bean, who resided in Homer, and was an aunt of the testator, testifies that, upon an occasion when she was in Cortland, the testator handed to her a will for safekeeping, and upon that occasion he told her that he had made two wills, one before this one; that this occurrence was after the death of the testator’s father, and when the testator brought the will to her, he came out of some office in Cortland, but whether or not it was the surrogate’s office she cannot tell. She also says that she never saw but the one will which he handed to her, and ■ that she did not read the wifi, nor know what its contents were, though she had had some talk with him about one clause in the will, the one providing that the wife should be cut off as a legatee in case of her remarrying. She further testifies that the will was in an envelope at the time, and that she took it home with her, and kept it in a drawer. - She thinks the time was in the fall of the year. That she kept the will for several years thereafter until it was sent for, when she sent it to Charles, at Cincinnatus, by mail. The witness further states that before she sent the will to Charles, she gave it to William Bean, who took it to B. T. Wright, an aftomey-atrlaw at Cortland, and, in pursuance of some instructions received from him, she took, the will
Having reached the conclusion that the testator duly made, executed and published his last will and testament on the Isfc day of October, 1884, of which will the copy offered in evidence-is a true and correct copy, the only remaining question to be determined is, does the will of 1884 revoke the will of 1883 ? It is distinctly stated in the will of 1884 that all former wills made-by the testator are revoked. By statute it is provided as follows; “No will in writing, except in the cases hereinafter' mentioned, nor any part thereof, shall be revoked or altered otherwise tiran by some other will in writing, or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was required to be executed.” 3 Rev. St. (Birdseye’s Ed.) p. 3343, sec. 42.
We have, then, proof of the execution of a will by the testator
We have, then, these facts established from the evidence: The •. making and the execution of the will in 1883; the making and
It is urged by the counsel for the proponent that the will of 1884 has not been established, for the reason that it has not been shown that at the time of its execution the testator was of sound mind and memory, and competent to execute it. While thé' subscribing witnesses have not testified directly upon the question of the competency or incompetency of the testator on Octo-' her 1, 1884, yet I think from the evidence in the case the conclusion can justly be drawn that the testator was at the time' competent to make a will. It is quite evident that, at the time of the making of the will of 1884, the scrivener had before him the will of 1883, as the language used in each of the two instruments is quite similar. Again, it does appear by the witnesses that in September, 1883, the testator was competent to make a valid will, and there is nothing showing that there was any change in his condition of mind subsequent to that time up to October 1, 1884. The will of 1884 differs but slightly from the will of 1883. At the time Charles made the last will he came to Cortland and had it drawn; went to the same person to.have it drawn who had drawn the former will, and also who- was one of the subscribing witnesses; requested Mr. Stone, who was -
(Rote as to revocation of wills:)
Statutory Provisions.—When There is Revocation.— When There is Re Revocation.
Statutory Provisions.
The statutory provisions as to revocation of wills are comprised in 2 Rev. St. 64, chap. 6, tit. 1.
Section 42 provides that no will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or altera
Section 43. If after the making’ of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriag’e, born either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation shall be received.
Section 44. A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.
Section 45. A bond, agreement, or covenant, made for a valuable consideration, by a testator to convey any property devised or bequeathed in any will, previously made, shall not be deemed a revocation of such previous devise or bequest, either at law or in equity; but such property shall pass by the devise or bequest, subject to the same remedies on such bond, agreement or covenant, for a specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.
Section 46. A charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, shall not be deemed a revocation of any will relating to the same estate, previouslv executed, but the devises and legacies therein contained shall pass and take effect, subject to such charge and incumbrance.
Section 47. A conveyance, settlement, deed, or other act of a testator, by which his estate or interest in property previously devised or bequeathed by him shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property; but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator,
Section 48. But if the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of such provisions, devise or bequest, such instr ument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.
Section 53. If after tire mailing of any will, the testator shall duly make and'execute a second will, the destruction, cancelling, or revocation of such second will shall not revive the first will, unless it appears by the terms of such revocation, that, it was his intention to revive and give effect" to his first will; or unless, after such destruction, cancelling or revocation, he shall duly republish his first will.
Section 59. The provisions of this title in relation to the revocation of wills, shall apply to all wills made by any testator who" shall be living at the expiration of one year from the time (January 1st, 1830) this chapter shall take effect.
Section 70. The provisions of this title shall not be construed to impair the validity of the execution of any will made before this chapter shall take effect, or to affect the construction of any such will.
Section 71. The term “will” as used in this chapter, shall include all codicils as well as wills.
When Tiieke is Revocation.
The revocation of a will executed .in duplicate will be presumed, although one copy only was proved to have been destroyed by testatrix with the intention of revoking it, it appearing that the other had not been seen any time after its execution in testatrix’s possession. (Asinari v. Bangs, 3 Dem. 385.)
If a will was last, seen in the possession of decedent, and it cannot be found subsequently after his death, held, that it must be presumed that he destroyed it with the intention of revoking it. (Matter of Nichols, 40 Hun, 387.)
Testator made his will in 1883, and a codicil on April 28, 18 8A He maintained sexual intercourse with his servant from 1RPR (soon after the death of his wife) till his death in May, 1886. After his death, his servant obtained a judgment award
A will made by a widow is (as she is an unmarried woman within the -meaning of 2 Rev. St. 64, sec. 44) revoked by her remarriage. (Matter of Kaufman, 131 N. Y. 620, 30 N. E. 242, 43 St. Rep. 282; aff’g 40 St. Rep. 550, 61 Hun, 331, 16 Supp. 113.)
When the provisions of a codicil are inseparably blended with those of a will upon which part of the codicil is written, the revocation of the latter by cancellation of the signature revokes the will. (Matter of Brookman, 11 Misc. 675, 33 Supp. [67 St. Rep.] 575.)
The same mental condition is required in a testator for a valid destruction as for a valid execution of his will. (Matter of Waldron, 19 Misc. 333, 44 Supp. [77 St. Rep.] 353.)
When the draft of a will revoking all other "wills is produced by the attorney who drew it, and the execution of the original of such will is satisfactorily proved, although the original itself was not found after decedent’s death, held, that probate of a prior will must be refused, as even if the second will were revoked, the first would not, in the absence of the circumstances required by 2 Rev. St. 64, sec. 53, be revived. (Matter of Myers, 28 Misc. 359, 59 Supp. [93 St. Rep.] 908.)
If a will be revoked by “some other writing of the testator declaring such revocation” (2 Rev. St. 64, sec. 42), it is “executed with the same formalities with which the will itself was required by law to be executed”' (id.), when the formality required in the making of a will shall be applied to the “other writing” or paper of revocation, so far as the latter, from its nature and character, is susceptible of having the same formalities observed. So held in Matter of Backus, 49 App. Div. 410, 63 Supp. (97 St. Rep.) 544; rev’g 29 Misc. 448, 61 Supp. (95
A decedent executed a deed of lands in favor of his nephew, and gave the deed to his attorney, asking him to deliver the deed to his nephew after his (decedent’s) death. Decedent subsequently executed a will devising the same property to his wife. Held, that as the deed was not to operate till testator’s death, it took effect as a will, and ivas therefore revoked by the will in favor of decedent’s wife. (Rochester Savings Bank v. Bailey, 34 Misc. 247, 69 Supp. 163.)
Where There is Aro Revocation.
A revoked will may be revived without re-execution by the execution of a codicil thereto. (Matter of Knapp, 51 St. Rep. 517, 23 Supp. 282.)
A testator left all his property to his collateral relatives. Subsequently he adopted a child. Held, that the will was not thereby revoked. (Matter of Gregory, 15 Misc. 407, 73 St. Rep. 3, 37 Supp. 925.)
If a child born after the execution of his parent’s will is provided for therein, he cannot claim the benefit of 2 Rev. St. 65, sec. 49, providing that he shall be entitled to a child’s portion as if his parent had died intestate, even although the provision made by the will might not be thought by the court to be adequate. (Minot v. Minot, 17 App. Div. 521, 45 Supp. [79 St. Rep.] 554.)
Decedent, at the time she made her will, was a married woman living with her husband. She subsequently became a widow and remarried. Held, that her will was not thereby revoked. (Matter of McLarney, 153 N. Y. 418.)
In Matter of Ackels, 23 Misc. 321, 52 Supp. (86 St. Rep.) 246, it was held that a will originally written on one full sheet
Under the second sentence of 2 Eev. St. 64, sec. 53, providing that the only other method of reviving a prior will where it has been revoked by a second, which has been destroyed, shall be by republication of the first will—such republication to be effectual must be in the presence of the attesting witnesses to the first will. (Matter of Stickney, 161 N. Y. 42, 55 N. E. 396.)
A will offered for probate was dated March 6, 1896. It was alleged that it was revoked by a later will executed about May, .1897. ¡Neither the alleged later will nor a copy of it was produced. One of the witnesses testified that he witnessed a will other than that offered for probate, but could not recollect in what year or month, nor what were its contents. The other testified that he drew and witnessed a will in 1897, but could not fix the date other than the year, and could only remember that it contained a revocation clause. Held, that the evidence of a later will was too indefinite to authorize a denial of probate to the paper before the court, especially as the latter had been found locked in a drawer of decedent’s safe, alone by itself, a day or two after his death. (In re Williams’ Will, 34 Misc. 748, 70 Supp. [104 St. Rep.] 1055.)