7 Johns. 394 | N.Y. Sup. Ct. | 1811
The obliterations in the will were made, not with an intent to destroy the devise already made, but to enlarge it, by extending it to lands subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having- the amendments attested according to law. The obliterations cannot, therefore, destroy the previous devise, for that was not the testator’s intention. The mere act of cancelling is nothing, unless it be done animo revocandi. Here the devise was left untouched, and the only alteration was to embrace other lands in the same devise. It is, therefore, very clear, from all the authorities cited on both sides, that the first devise must stand good. The case of Onion v. Tyrer, (1 P. Wms. 343. note 1.) and the case of Short v. Smith, (4 East, 419.) are decisive, and much in point. The lessors of the plaintiffs are, then, entitled to six tenths of all the lands acquired by the testator after the making of his will, in July, 1786, and to no more.
Judgment accordingly.