23 Misc. 321 | N.Y. Sur. Ct. | 1898
The' proponent presents two papers which together constitute, as she claims, the last will and testament of the deceased. The two papers make and constitute one full sheet of legal cap paper. At one time these papers were one complete instrument and when so complete was the last will and testament of the deceased, properly executed, and was the free and voluntary act of a competent testatrix. These papers have been marked respectively Exhibits “A” and “ B.” Exhibit ieA” is the disposing part of the will, and Exhibit “ B ” contains the signature of the testatrix, the seal, the attestation clause, and the signatures of the witnesses. Exhibit “ B ” was cut from Exhibit “ A.” We are thus to determine'whether the instrument which once constituted the will of this decedent has been canceled and revoked by the cutting off of the signature, attestation clause and signatures of the witnesses. This is the sole question in the case and must be determined from the evidence and circumstances adduced upon the hearing. This evidence is meagre and unsatisfactory and the disposition of the question must depend largely upon presumptions.
John C. Griswold, a resident of the town of Arkwright, in this county, was sent for by the testatrix to prepare and superintend the execution of her will. He went- to her residence pursuant to such request and prepared and superintended the
In view of tbe fact that tbe will, as originally executed, contained a detailed disposition of all tbe property of the testatrix, it may be fairly assumed that tbis instrument was executed after tbe execution of tbe will. This brings us to tbe consideration of legal principles governing tbe revocation of wills. Tbe statute (2 R. S., chap. 6, tit. 1, § 42) prescribes tbe manner in wbicb a will once duly executed may be revoked and precludes any other mode of effecting such revocation. It reads-as follows: “No will in writing except in tbe cases hereinafter mentioned, nor any paid thereof shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of tbe testator, declaring such revocation or alteration, and executed witb tbe same formalities witb which tbe will itself was required by law to be executed; or unless such will be burned, torn, canceled, obliterated or destroyed, with tbe intent and for the purpose of revoking tbe same, by tbe testator himself or by any other person in bis presence by bis direction and consent; and when so done by another person, tbe direction and consent of the testator and tbe fact of such injury or destruction shall be proved by at least two witnesses.”
It is conceded that tbe instrument, purporting to be tbe requests of tbe testatrix, does not' operate as a revocation of tbe
We are now brought to the final contention in the case that the will -was impliedly revoked by the disposition of all the property of the testatrix in her lifetime. We are not prepared to yield to this contention. First, because we are not satisfied from the evidence, and cannot find, as a fact, that the testatrix did dispose of all of her property after the making of the will, and prior to her death; and, secondly, because if she had done "so, in our opinion, that should not defeat the probate of tho will. Such act on her part may well operate to prevent the beneficiary from enjoying the fruits of beneficence as stated in the will, yet it does not follow of necessity that it would work a complete revocation of the will; and we think the will in such case should be admitted to probate, leaving its effect to be determined when the legatee or devisee prefers his claim. We reach the conclusion that there was no valid revocation of the will in question, and that the instruments Exhibit “A” and “ B ” should be admitted to probate as and for the last will and testament of the testatrix.
A decree will enter admitting such instrument to probate.
Decreed accordingly.