| N.Y. App. Div. | Dec 15, 1922
Decree of the Surrogate’s Court of Westchester county, denying probate, affirmed upon the opinion of the surrogate [See 119 Misc. 26" date_filed="1922-06-15" court="N.Y. Sur. Ct." case_name="In re the Application for the Probate of the Last Will & Testament of Parsons">119 Misc. Rep. 26], with costs to the contestants payable out of the estate. Rich, Kelly, Manning and Young, JJ., concur; Blaekmar, P. J., dissents with the following memorandum: To revoke a will by other than a testamentary act with the formalities prescribed by law, two things must coincide, first, a physical act, either burning, tearing, canceling, obliterating or destroying; second, the intent to revoke. Whether the physical act is within the statute, i. e., in this ease whether the will was canceled, must be determined without regard to the meaning of the words written upon it. Suppose something else, not expressing an intent to revoke, had been written on the will; such words would have been just as effective to cancel the will as those written by the testator on the present will, and the will would have been revoked if the intent was shown by evidence aliunde. I tMnk the defect in the reasoning of the majority is to take the proof of the intent as proof of the physical act.