In re the Probate of the Will of White

25 N.J. Eq. 501 | N.J. Super. Ct. App. Div. | 1874

The Okdlaaiíy.

On the 28th of January, 1874, Engelina 8. White, widow, died in the city of Trenton. At the time of her death, she was the owner of real and personal property. Immediately after her decease, there was found in a repository, (a tin box,) which she had kept in her room for many years and which she called her il bank,” among her deeds and other writings, a paper which she had executed on the 30th of December, 1867, as her last will and testament. With it was found a letter written by her to her cousin, on the 4th of July, 1871, endorsed with a direction “ to be opened one hour after my death,” by which she requested the lady to whom it was addressed, to take exclusive possession, on the day or night of the writer’s death, of all her personal property, her wardrobe household furniture, papers, silver and jewels, and all belonging to her in the house, until her will should be read, adding “ then the rightful (owner) may come forward with a just claim upon the property, but not until then,” and ended the letter with an expression of her continued confidence in her cousin. By that will she gave all her property, real and personal, to her uncle, Edmund Bartlett and his wife, and requested that her remains be buried' in the same lot or burial plot with her deceased children, in St. Louis, Missouri. She appointed Mr. Bartlett her executor. He now offers that paper for probate as her last will and testament. The execution of it is fully proved. It purports to have been, and actually was executed under her hand and seal, and the certificate of attestation declares it to have been signed, sealed, published and declared by her, as her last will and testament. When found, after her death, it was not enclosed in an envelope, but was lying folded up in a pocket-book in the box. The seal had been carefully torn off; the paper where the seal had been affixed, being torn entirely out with that on which the greater part of her surname as signed to the will was written, and the rest of her signature was obliterated with very heavy pencil marks. The signatures of the three witnesses were obliterated in like manner. The will is-written on the two sides of a half sheet of paper, and was signed but once. The testatrix died about six years after the execution of that instrument, and about three years and a half after the date of the letter above mentioned. It does-not appear that she made any reference to her will after writing the letter, except in a conversation with Mr. Bartlett shortly before her death, in which, referring to the fact, that, as he knew, she had in her will requested that she might be-buried at St. Louis, she said she had changed her mind on the subject, and wished to be buried where her husband was buried, in Burlington county, in this state.

The will bears clear evidence of the intention to revoke it.. The tearing out of the seal and of part of the signature of the-testatrix, and the obliteration of the names signed to the will,, are a cancellation of the will. Avery v. Pixley, 4 Mass. 460; Hobbs v. Knight, 1 Curteis 768; Goods of James, 7 Jur., N. S., 52; Price v. Powell, 3 H & N. 341; Smock v. Smock, 3 Stockt. 156. And from the faet that the will was found in the possession of the testatrix, in her repository, thus cancelled, the presumption arises that the cancellation was her act, done animo caneellandi, and that by that act, she intended to render the will null and void. Smock v. Smock, supra; 4 Kent’s Comm. 532; Davies v. Davies, 1 Lee 444; Lambell v. Lambell, 3 Hagg. 568; Baptist Church v. Robbarts, 2 Barr 110.

IVor can the will be established by the evidence of the letter and conversation above stated. There is no proof as to when ihe cancellation took place. It may have been after the letter was written ; and besides, the reference to a will in that letter does not necessarily point to this instrument. The allusion to the request contained in the will as to the place of her burial, is not sufficient to revive the will. “ It would be very dangerous,” said Sir George Lee, in Davies v. 'Davies, “ to establish wills on loose general declarations, contrary to apparent acts done by testators themselves.”

Probate of this will must be denied.