Clark v. Smith

34 Barb. 140, 1861 N.Y. App. Div. LEXIS 50

• Court: New York Supreme Court
• Decided: July 9, 1861
• Status: Published

Opinion

By the Court, Balcom, P. J.

I think we need not determine whether, if the testator had erased the word son in the second and fourth clauses of his will, only those two clauses or the entire will would have been revoked; and I also think we should not decide whether the surrogate erred in following the dicta of Judge Selden in Waterman v. Whitney, (1 Kern. 159,) in rejecting evidence that the testator admitted he made the marks or erasures in the second and fourth clauses of his will, with the intent and for the purpose of cancelling or revoking those clauses. I have come to the last mentioned conclusion for the reason that the rejected evidence would not have changed the case if it had been received. If the testator made the marks or erasures, in the second and fourth clauses of his will, with the intent and for the purpose of cancelling or revoking those clauses or the entire will, they did not effectuate such intention or purpose. They did not materially alter the sense or meaning of the will or either clause in it. If the will had been written without either of the words in it, which have been marked or erased, its meaning and effect would have been precisely the same they were before those words were mutilated. I take it to be clear that the intention of a testator to cancel or revoke a clause in his will, however strongly declared, is of no consequence, unless it be carried out by some act amounting in judgment of law to an actual cancellation or revocation. In Martins v. Gardiner, (8 Sim. 73,) the testator, by a clause in his will, directed his executors to set apart a fund sufficient to produce the annual sum of ten pounds, and to pay that sum into the proper hands of his sister, [Elizabeth,] the wife of Francis Betley of Yarmouth, in the county of Norfolk, butcher, for her life, or into the hands of such persons as the said Elizabeth Betley should appoint, to the intent that the same might be for the separate use of the said Elizabeth Betley; and he directed that the receipt of the said [Elizabeth] should be a sufficient discharge for the annuity; ánd he also directed his executors to divide the residue of his estate equally amongst his brother W. Gar-diner and his sisters Sarah Gardiner and [Elizabeth] the wife of the said Francis Betley. The name Elizabeth was after-wards erased by the testator, Avherever it occurs, as above included within brackets, and the question was whether the bequests to Elizabeth Betley (whose right name was Bateley) were revoked. The vice chancellor decided that, as the description, and in some places the name, Elizabeth Betley, remained uncanceled, the court was not warranted in holding that the bequests to her were revoked. Now in this case the word son remains uncanceled in the clauses wherein the name James W. Smith was erased, and as the testator had but one son and his name was James W. Smith, the devises to him have not been revoked. Sufficient words remain to make them as perfect and effectual as they were before the name James W. Smith was erased.

[Broome General Term, July 9, 1861.

For the foregoing reasons I am of the opinion the testator did not revoke his will, or either of the mutilated clauses in it.

It follows that the decision of the surrogate should be affirmed. - o

Decision accordingly.

Balcom, Campbell and Parker, Justices.]