161 Misc. 194 | N.Y. Sur. Ct. | 1936
The will of this decedent was offered for probate. Objections were filed and later withdrawn upon stipulation of the parties. The contestants argued for revocation. The facts are so unusual that, even after settlement, I am filing this opinion.
The decedent was an old gentleman at the time of his death on November 12, 1935. He was an educated person and, in former years, had been engaged as private secretary to at least one man
The testimony of the witness to the will threw no light on the question because it was impossible for him to testify except as to execution.
Mr. Albert D. Osborne, an expert on questioned documents, was called to testify.
Section 34 of the Decedent Estate Law provides for the revocation and cancellation of written wills. No will in writing, nor any part thereof, _ shall be revoked or altered otherwise than by some other will in writing or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was executed; or unless such will is burned, torn, canceled, obliterated or destroyed with the intent and for the purpose of revoking the same by the testator himself.
If a revocation is effective in the instant case, it was done by the testator himself taking apart the two original sheets to the
There is no proof present that the willmaker intended to revoke the will. 'In fact, every inference is that he intended to leave it unrevoked.
In the admission of wills to probate, courts are met with erasures, mutilations, interlineations and additions made to a will, but such do not change the will unless they were made with the same formalities with which the will itself was required to be executed. (Lovell v. Quitman, 88 N. Y. 377; Matter of Fox, 118 Misc. 352.) The mutilation of a paragraph of a will does not revoke it and, where the contents or substance of a clause cannot be proven and where missing parts cannot be established, the remaining portion may be probated unless it can be seen that the missing parts of the will affect or alter the part that remains.
Such alterations will not invalidate the instrument if the original intention of the testator can be ascertained. (Matter of Lang, 9 Misc. 521, 528.)
In Speake v. United States (9 Cranch, 28) Judge Torey said: “ The fact, that there is an erasure or interlineation apparent on the face of the deed, does not, of itself, avoid it.”
Any subsequent conversation or conduct by the testator cannot vitiate the will unless it is tantamount to a revocation. (Stevens v. Stevens, 6 Dem. 262.)
Where a testator, after the execution of his will, makes erasures and interlineations therein without intending to revoke and without re-executing the same, the will will be admitted to probate as originally executed. The cancellations, obliterations or destruction of a will with intent to revoke the same, as declared by the statute, refer to the whole will and not to a particular provision thereof. It was clear that the will as originally drawn was not intended to be revoked but only changed in the parts mentioned. Since this was not attempted to be done under the statute, the will must be admitted as it was originally executed. (Matter of Prescott, 4 Redf. 178.) In the case of McPherson v. Clark (3 Bradf. 92, at p. 98) the court said that the revocation depends on the testator’s intention and “ it has become a well-established rule not to give effect to a part of the testator’s intention when effect cannot be given to the whole of it.”
The effect of an unauthorized and unauthenticated erasure or interlineation in a will, made after the execution, is to render the
In this State the burden of making out revocation is ordinarily on the contestant pleading it. (Matter of Parker, 100 Misc. 219, 225.) Implied revocations are now regulated by statute. (Dec. Est. Law, § 34.)
“ It is an established rule * * * . that where a revocation of a will is sought to be established from the simple fact that the testator cut, tore or obliterated the text of the script of his will, either in whole or in part, animus revocandi must also be established aliter ” (p. 228).
“ In every instance of an implied revocation by destruction of any kind quo animo the act is done must be established aliunde. The mere physical act of destruction is too equivocal to effect an implied revocation per se. The destruction may have been unintentional; it may have been by a stranger, therefore quo animo it was in fact done becomes highly essential under the Statute of Revocations. * * * What the rule is when there is no evidence of intention is another point. * * * f0r here there is, in any event, direct proof of an intention not to revoke the whole will * * *. Under the circumstances there is here no proof, or presumption whatever, of animus revocandi, and therefore no implied revocation of any kind has been established in any way ” (p. 229).
In Matter of Curtis (135 App. Div. 745) the court said: “ No tearing or obliteration can be effectual unless it altogether destroys the whole will and was intended so to do.” The same rule of law is set out in Matter of Fox (118 Misc. 352). Matter of Parsons (119 Misc. 26; affd., 236 N. Y. 580) sets out the rule of law as to how a will may be revoked. (See Matter of Enright, 139 Misc. 192; Matter of Ackerman, 129 App. Div. 584; Matter of Wood, 144 id. 259; Matter of Van Woert, 147 id. 483; Matter of Kent, 169 id. 388, 392; Matter of Ridgway, 141 Misc. 582.)
Matter of Bescher (132 Misc. 625) is a near case. On April 18, 1917, the decedent made and executed a will consisting of three typewritten sheets. After her death an envelope was found among
The law does not demand that the sheets of paper comprising a will shall be fastened together by clips, hooks or paste. In the instant case we find a paper writing, always in the testator’s possession, prepared by him, in two different places in his library. If it were not for the new first sheet of the original paper writing, we would simply take the second sheet of paper, pin them together and submit them as decedent’s will. Having proof that the first sheet of the paper writing was not in existence or made on August 5, 1918, it becomes the duty of the court to remove it from its present fastening to the original second page by pasting and to reannex the original first sheet to the second or executed sheet and thus complete in original form the paper executed by the decedent. We are left then with the four lines referring to the burial of the decedent which were stricken out by red lines and which, under the law above set forth, we may disregard. The most that can be said in behalf of the first sheet of the paper writing as filed is that it carried out the intent of the willmaker because it disclosed that he desired to be buried in Greenwood and not in Woodlawn Cemetery. Before the secretary found the original first sheet of the original will, decedent’s remains found interment in
I hold that the will was legally executed; that the testator did not revoke it; that the will consisting of two sheets attached together on August 5, 1918, should be reattached or repasted together and in such form the will is admitted to probate.
Proceed accordingly.