12 Mills Surr. 464 | N.Y. Sur. Ct. | 1914
The document offered for probate as the last will and testament of the decedent is dated July 28, 1910. Except as hereinafter noted it is typewritten and consists of eight numbered paragraphs. The paragraph designated “ Fourth ” has diagonal lines drawn across it and the word “ cancelled ” written upon it, in ink. At the end of the fifth paragraph there is a cross within a circle, also in ink, and after the attestation clause and the signatures of the witnesses beneath the same, there appears the following written in longhand: “July 8, ■1914, I, Otto Hildenbrand hereby cancel the entire fourth paragraph and add the following to the fifth paragraph, where marked,” and then there appears a cross within a circle, the design being similar to the one at the end of the fifth paragraph above referred to, followed by a direction that a certain sum shall be paid to each of his four daughters out of the earnings of shares of stock given to his two sons, in ten yearly installments. The daughters named are the same persons who had theretofore been named in paragraph “ Fourth ” of the will, but
The questions presented are:
(1) Can effect be given to the attempted cancellation of the fourth paragraph of this will, assuming that the lines were drawn across it and the word written upon it by the testator animo revocandi, and
(2) Can any effect be given to the dispositive writing following the attestation clause.
The evidence shows conclusively that the will was executed in its typewritten form; that at the time of execution no lines had been drawn across the fourth paragraph nor had anything been written upon the same; that there was no mark at the end of the fifth paragraph, and that nothing but the signatures and addresses of the subscribing witnesses was written after the attestation clause. No evidence has been submitted to prove that the alterations upon the face of the will were made before its execution.
There is no proof before me as to the handwriting in which the changes and additions to the will were made, but I will assume that they were made in the handwriting of the testator and also that they were made by him with the deliberate intent and purpose of cancelling the fourth paragraph of the will. I am considering the matter, therefore, with premises most favorable to effectuating the attempted cancellation and the attempted change in the provisions of the will.
The law prescribes certain formalities which must be observed in the execution of so important a document as a last will and testament. Decedent Estate Law, Consol. Laws, chap. 18, § 21; Laws of 1909, chap. 18. The reason for requiring the observance of these formalities is to throw around the important and solemn act of testation safeguards calculated to minimize
It will be noted that the methods of revocation provided for by this statute may be roughly divided into two general classes.
First. Where the revocation is accomplished by some written instrument not necessarily attached to the will, such as :
(a) Some other will in writing;
(b) Some other writing of the testator declaring revocation or alteration and executed as indicated; and
• Second. Where the revocation results from some act done to the will, such as burning, tearing, canceling, etc., with the intent to revoke the same and performed
(a) By the testator himself; or
(b) By another person at the direction of the testator.
It will also be noted that the statute in referring to revocation.
The addition made to the will is not an instrument such as is referred to in sections 39 and 40 of the Decedent Estate Law, and it is therefore unnecessary to discuss here the provisions of those sections. It was not executed in the manner provided by law and hence cannot be admitted either as a will or as a codicil to the will of July 28, 1910. For the same reason its provisions did not effectuate either a revocation or an alteration of the will.
It follows then that the will was not revoked or altered by the first method, to wit, by some written instrument. Was it then revoked by the other method prescribed by the statute? It was not burnt, torn, obliterated or destroyed, and it was not can-celled because no part of the instrument was defaced but the fourth paragraph. Black Law Dict.; Matter of Akers, 74 App. Div. 461. It is evident that it was only the 65 Fourth55 paragraph of the will and not the whole will which the testator desired to cancel. Such being the case and he having canceled and intended to cancel only a part of the will, his act was without effect. This conclusion, I think, clearly follows from the language of the statute, and has the support of the decisions of
The execution of the will in the form in which it was on July 28, 1910, has been duly proved, and, the will not having been revoked or altered in the manner provided for by the statute, it follows that it must be admitted to probate in the form in which it was on the date of execution.
The dispositive writing after the attestation clause not having been executed as prescribed by law cannot be admitted to probate either as a will or as a codicil.
Decreed accordingly.