In re Potter's Will

New York Surrogate's Court

In re Potter's Will

12 N.Y.S. 105, 33 N.Y. St. Rep. 936, 1890 N.Y. Misc. LEXIS 3346

CourtNew York Surrogate's Court

DecidedOctober 28, 1890

StatusPublished

Cited by5 cases

This text of 12 N.Y.S. 105 (In re Potter's Will) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Potter's Will, 12 N.Y.S. 105, 33 N.Y. St. Rep. 936, 1890 N.Y. Misc. LEXIS 3346 (N.Y. Super. Ct. 1890).

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Opinion

Spring, S.

The testatrix prepared the will herself and signed it in the absence of the attesting witnesses, but acknowledged the signature to be her own, and made the usual declaration that it was her will. The two subscribing witnesses were not present together when this acknowledgment was made, and they did not sign in the presence of each other, but this is not necessary. Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 N. Y. 486-497; Lyman v. Phillips, 3 Dem. Sur. 459-467.

There are several interlineations and erasures in the instrument, but an inspection of it shows plainly that all the interlineations are in the handwriting of testatrix, and these, as well as the erasures, may well be presumed to have been done by her in the preparation of the will and prior to its execution. The facts that she was her own scrivener and the custodian of the document weigh in favor of this presumption. There is no evidence to show that these obliterations were made with any intent to nullify the will, and that is essential before a revocation can be effectual. Lovell v. Quitman, 88 N. Y. 377; 1 Kent, Comm. 472, 473. A decree will accordingly be entered admitting the will to probate, and the costs will be adjusted and provided for therein.

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Spring, S.

The testatrix prepared the will herself and signed it in the absence of the attesting witnesses, but acknowledged the signature to be her own, and made the usual declaration that it was her will. The two subscribing witnesses were not present together when this acknowledgment was made, and they did not sign in the presence of each other, but this is not necessary. Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 N. Y. 486-497; Lyman v. Phillips, 3 Dem. Sur. 459-467.

There are several interlineations and erasures in the instrument, but an inspection of it shows plainly that all the interlineations are in the handwriting of testatrix, and these, as well as the erasures, may well be presumed to have been done by her in the preparation of the will and prior to its execution. The facts that she was her own scrivener and the custodian of the document weigh in favor of this presumption. There is no evidence to show that these obliterations were made with any intent to nullify the will, and that is essential before a revocation can be effectual. Lovell v. Quitman, 88 N. Y. 377; 1 Kent, Comm. 472, 473. A decree will accordingly be entered admitting the will to probate, and the costs will be adjusted and provided for therein.

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Bluebook (online)

12 N.Y.S. 105, 33 N.Y. St. Rep. 936, 1890 N.Y. Misc. LEXIS 3346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-potters-will-nysurct-1890.

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