In re Providing the Last Will & Testament of Tousey, 2 Mills Surr. 169

2 Mills Surr. 169 | N.Y. Sur. Ct. | 1901

Thomas, S.

— The contestant concedes that the papers offered for probate were duly executed by the decedent as her last will and codicil thereto. The sole ground of contest is based on a recital in the will to the effect that the decedent was unmarried and had no “ direct heirs.” A cousin who had not seen her or communicated with her, either directly or indirectly, for over forty years before her decease, contends that he is a “ direct heir ”; that he was missing and his whereabouts were not known to the members of his immediate family for some years; that the inference to be drawn from the language of the will is that the decedent mistakenly supposed him dead and made the will because of this mistake, and that as against him she died intestate. Second cousins were mentioned by name in the will, and it is clear that the decedent did not regard them as “ direct heirs.” She probably used the word “ direct ” for lineal, and I am not satisfied that she made any mistake whatever. The doctrine of dependent relative revocation includes as one of its branches, and applies to, an attempted revocation of a testamentary provision which upon some ground of mistake is held inoperative. If applicable to a will it must appear clearly from the will itself, not only that there ha3 been a mistake made by the testator, but also just what he would have done in case there had been no mistake. Gifford v. Dyer, 2 R. I. 99. Where a legacy was made by a will and in a codicil revoking it, it was recited that the legatee was dead,- such revocation was held inoperative on proof that the legatee survived the testator (Campbell v. French, 3 Ves. 321), but even in case of revocation by codicil the rule has been applied with caution, and the mistake must appear on the face of the codicil as the sole moving cause to induce the revocation. Skipwith v. Cabell, 19 Gratt. 758. An apparent mistake as to a matter of fact as to which the testator must have had full knowledge is not sufficient. Mendinhall’s Appeal, 124 Penn. St. 387. In no case which has been brought to my notice has a will been refused probate, or has any attempt been made to correct or change its provisions on proof extraneous to the document of a mistake by the testator as to a fact which might possibly have led him to do something different from what he ha® done. On the contrary, the cases in the courts of this State which require the testator’s directions to be followed, even though it may be made quite clearly to appear that he was actuated by erroneous opinions on questions of fact, are quite numerous. Matter of Bedlow, 67 Hun, 414; Clapp v. Fullerton, 34 N. Y. 190; Matter of Harris, 19 Misc. Rep. 388; Creely v. Ostrander, 3 Bradf. 107. The objections of the contestant must be overruled and the will admitted to probate.

Probate decreed.