| N.Y. Sur. Ct. | Dec 15, 1909
On the 3d day of February, 1909, Alfred Gil-man died in the city of New York,"being at the time of his death a resident of the county of Sullivan, N. Y. On the 15 th day of February, 1909, Charles F. Van Inwegen of the city of Port Jervis, N. Y., filed in the office of the surrogate of the county of Sullivan an instrument purporting to be the last will and testament of Alfred Gilman, deceased, dated March 30, 1890, accompanying which was a petition praying for the probate of said will.
On the 17th day of February, 1909, William P. Hamilton, Jr., as attorney for the heirs 'and next of kin of the said Alfred
For the purpose of convenience in referring to these papers, I shall designate them as the will of 1890- and the will of 1894. Both of these instruments appear to be perfect and complete wills, duly executed and regularly attested according to statute. The 1890 will was drawn at Port Jervis, FT. Y., on the day it bears date, by Mr. Ouddeback, an attorney standing high in his profession. It was carefully prepared in accordance with the requirements of the statute of this State. The 1894 will was drawn in the city of Milwaukee, Wis., where Mr. Gilman was temporarily sojourning. Mir. Gilman had large real estate holdings in Wisconsin and Michigan, and from the testimony in this proceeding it is evident he had frequent occasion to employ attorneys to look after his many mid varied interests there.
With both wills properly established, the next question is whether the will of 1894 revokes the will of 1890.
The law on the question of implied revocation is clearly settled in this State, where a will containing no revocation clause revokes all prior wills, if it is inconsistent with them and if it disposes of the entire estate. Does the will of 1894, therefore, dispose of the entire estate of Alfred Gilman, deceased ? If it does and if it is inconsistent with the 1890 will, then it follows that the will of 1894 should be admitted to probate, regardless of the fact that there is no revocation clause.
In construing testamentary dispositions, the law endeavors to get at the intention of the testator and by a careful and painstaking analysis of the instrument to reach such a conclusion as in the opinion of the court was desired by the testator. It is the duty of the court, in the examination of testamentary instrument, to give such construction as will effectuate the intention of the testator. Tilden v. Greene, 130 N. Y. 39.
The rule runs through all the law that, where a will has been carefully executed under the solemnity of the statute, courts should closely scan it and not allow a testator’s last wishes regarding his property to be nullified, if from the context his intention can be understood. In Matter of Campbell, Judge Gray says: “ The object of the Statute of Wills is to effectuate
The court in Henderson v. Henderson, 113 N. Y. 16, says: “ Courts should endeavor by every reasonable intendment, and by a liberal construction, to sustain a testamentary disposition of property when in so doing they give actual and just effect to the testator’s purpose.” A will may operate as a revocation vof a former testamentary instrument where there is an inconsistent disposition of the previously devised property. 1 Jarman Wills, 134.
It is unnecessary to elaborate further on this legal proposition, or to cite other authorities in support of it.
How, let ns look at the conditions existing at the time the 1894 will was executed. The deceased was at that time in Saint Joseph’s Hospital, Milwaukee, Wis., where he was being treated for some ear trouble.
There is no question raised by the evidence but that the deceased was of sound and disposing mind' and fully able - and competent to dispose of his estate; and it is most natural to imagine that, during the time of his' enforced stay in the hospital, where he had leisure to consider the large property interests which he owned, the subject of the disposition of the same should he one for him to carefully decide upon.
Therefore, it was no more than to be expected that, having settled in his own mind how.he wished to dispose of his.prop
It is noticeable that, when the second will was drawn, Mary Gilman having died, the deceased left legacies to various members of her family, that is, the Boyd family. Further, there are five persons named in the first will, to wit: Andrew Campbell, John Murran, Samuel Johnson, John Lanigan and Henry Lanigan, who are not referred to in the 1894 will. "When the 1890 will was executed, these men were in Mr. Gilman’s employ' in Forestburgh, this county. In 1894 Mr. Gilman had left Forestburgh, having given up his business there and gone to Milwaukee. His interests were then mainly in Wisconsin and Michigan. When the first will was drawn, at Port Jervis, he doubtless had a desire, that as faithful employees, these men, Campbell, Murran, Johnson and Lanigan, should receive something from his bounty.
If I recall the evidence correctly he had given all of them sums of money on various occasions, and to Lanigan’s memory ’(who had died subsequently to the 1890 will) he had erected a monument.
The will of 1894 is, therefore, inconsistent with the 1890 will and clearly shows that the intention of the testator was to have it supersede and take the place of the former will. It also provides for the disposition of the entire estate. The fact that the 1894 will names no executor has no bearing whatever on its validity.
In Austin v. Oakes, 117 N. Y. 598, the court says: “ Where provisions are repugnant it is our duty to preserve the paramount intention of the testator at the expense even of some subordinate particularsSee Taggert v. Murray, 53 N.Y. 233" court="NY" date_filed="1873-09-23" href="https://app.midpage.ai/document/taggart-v--murray-3592107?utm_source=webapp" opinion_id="3592107">53 N. Y. 233.
There is no mistaking, after a careful examination of all the ■evidence and of the will of 1894, that the paramount intention ■of the testator was to have that will revoke all former wills. It ■is the duty of courts to guard well the wishes of decedents and to see that they are faithfully carried out.
The authorities cited by counsel have been carefully examined by me and, after an earnest endeavor to construe these two instruments in order to effectuate the intention of the testator, I have reached the conclusion that the will of 1894' should be admitted to probate and I deny probate to the 1890 will.
Let a decree be entered accordingly.