In re Prescott, 4 Redf. 178

In re Prescott

4 Redf. 178 | N.Y. Sur. Ct. | 1879

'• ■ The Surrogate,-—The instrument in question bears evidence of having been changed, and it appears by the testimony of one of the subscribing witnesses who drew the will that the changes have been made since its execution. They were doubtless made by the testator, as over the respective changes he has written his initials in Ms own handwriting. In the tenth line he has erased and substantially obliterated the ñame “Nannie,” and on the sixth line of the second page he has stricken out the same name “Nannie,” and on the. next line the name “Prescott,” and in the ninth line he has erased the word “four” and above it written “three.”

The evidence as to these changes and the original text of *179the will is clearly and satisfactorily proved. By section 40, 3 R. S., 63 (6 ed.), it is provided that no will shall be revoked or altered, except by some other instrument in writing declaring such revocation or alteration, executed wd'th the same formalities as the will, or unless such will be burned, torn, canceled, obliterated or destroyed with the intent of revoking the same. It will be observed that the burning, tearing, canceling, obliterating or destroying mentioned in the statute refers to the whole will, and not to a particular provision thereof. Inasmuch as there is no proof in this case of a re-execution of the- instrument after the erasures and alterations,, it is clear that the instrument cannot be admitted as a will in its present form. It is equally clear that the will as originally drawn "was not intended to be revoked, but only changed in the particulars mentioned. Since this was not-attempted to be done under the statute, with the same formalities as were observed in the execution of the will, therefore it becomes the duty of the Surrogate to admit the will as it was originally executed. (Macpherson v. Clark, 3 Bradf., 92.) The will in question should therefore be admitted to probate and recorded as it was executed by the decedent.

Ordered accordingly.