In re the Probate of the Last Will & Testament of Evans

98 N.Y.S. 1042 | N.Y. App. Div. | 1906

Jenks, J.:

The sole question is not whether Mrs. Evans made a valid will but whether she left one. The learned surrogate found that in 1905, prior to her death, she directed her brother (who had a contingent interest under the will and was the sole executor) to produce the will- made in 1897 before her and to destroy it, that She asked him if lie had destroyed it, and that he answered that he had done so. If the will had been revoked, the brother would not have been benefited through her intestacy. The statute dealing with revocation'is plain (2 E. S. 64, § 42). It specifies the acts which may work revocation and in effect declares that there is no other way. The authorities are clear and -uniform that revocation can only be. made pursuant thereto. (Lovell v. Quitman, 88 N. Y. 377; Burnham v. Comfort, 108 id. 535, 541; Matter of Davis, 105 App. Div. 221, 228 ; Delafield v. Parish, 25 N. Y. .9.) But the learned counsel for the Contestant would bring this case, within -the statute in order that this specific wrong may be righted. His proposition is: “ Equity is properly invoked in the application of a statute if the circumstances of the matter are such as properly conform to the spirit of the statute and could not reasonably have been in the mind of- the legislators when enacting the statute.” ■ And we are -cited to a quotation from Bacon’s Abridgment (Statute, I, 6 ; Vol. 9 [Bouvier’s ed.], p. 248) made by Earl, J., in Riggs v. Palmer (115 N. Y. 506) : “ In order, to form a right judgment 'Whether a case be within the equity of .a- statute it is a good way to suppose the lawmaker present and that you have asked him this question, Did you intend to comprehend- this case % Then you must give yourself such answer as yoii imagine he, being an upright and reasonable man, would have given. If this be that lie did mean- to comprehend it, you may safely hold the case to be within the equity of the statute; for, while you do no more than he would have doné, you do not act contrary-to the statute, but in conformity • thereto.” Let us apply -the test. - Of course the question put would not be specific as to whether the statute was intended to right the wrong worked in this specific instance, but whether the Statute. “ comprehended,” i. e., a revocation' in a case where the testator directed that an act sufficient under the statute to effect a revocation should be done, and it was not done, but the testator was told by the custodian that it had been done apart by the custodian. The legislator might well answer that the statute was -drawn so as to require that such an act should actually be done, that the protection of testators and the Objects of "their bounty demanded that the undóing of an act so formal as the making of a last will and testament should be so formal and so thorough and so complete as to show not mere animus revocandi, but positive action upon it should be taken by the testator or in his presence. I know of no principle that justifies a court to apply a statute beyond its interpretation and construction on the ground that its application would prevent injustice in a specific instance. Legislative limitations or omissions do not constitute a court as a curative legislature.

' The decree is affirmed, with costs.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirmed, with costs.