In re Proving the Last Will & Testament of Miller

New York Surrogate's Court

In re Proving the Last Will & Testament of Miller

51 Misc. 156, 100 N.Y.S. 849

CourtNew York Surrogate's Court

DecidedJune 15, 1906

StatusPublished

Cited by3 cases

This text of 51 Misc. 156 (In re Proving the Last Will & Testament of Miller) 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 Proving the Last Will & Testament of Miller, 51 Misc. 156, 100 N.Y.S. 849 (N.Y. Super. Ct. 1906).

Pincite

Opinion

Heaton, S.

This will was found in the safe of the deceased at his place of business, and across his signature [157]*157thereon were five pen marks such as one would make in canceling a signature and they were so distributed that they affected the whole signature even to the middle initial of his name. Under this signature in the handwriting of the' deceased were written the words “Am going to make a new will.” This paper was in an envelope marked as the will of the deceased which had been sealed, and later opened at the end.

The son of the deceased, who is the executor named in the will, testifies that he took the will from the safe after his father’s death in its present condition and that he believes no'one had access to the safe except his father. The will was holographic and made in 1888 and divided his property among his children, issue of a deceased child, and his wife. Subsequently his wife died and one of his daughters married and died leaving two children.

The will comes directly from the safe of the testator to the court with not the least suspicion of its having been tampered with by any person.

Furthermore the words “Am going to make a new will ” written by the deceased below his canceled signature indicate that he himself canceled the signature.

We have then these undisputed facts:

A will eighteen years old.

Several important changes in the family of testator after the making of the will.

From these facts a court is allowed to draw but one conclusion, the legal conclusion of revocation. Matter of Hopkins, 73 App. Div. 559; 172 N. Y. 360; Matter of Brookman, 11 Misc. Rep. 675; 67 N. Y. St. Repr. 397; Matter of Philp, 19 N. Y. Supp. 13; 46 N. Y. St. Repr. 356; Matter of Alger, 38 Misc. Rep. 143.

The fact that the testator was acquainted with the law of wills strengthens the presumption of revocation by cancellation, since the method adopted by him has long been recognized as a proper and legal manner of revoking a will.

Let a decree be prepared denying probate.

Probate denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Heaton, S.

This will was found in the safe of the deceased at his place of business, and across his signature [157]*157thereon were five pen marks such as one would make in canceling a signature and they were so distributed that they affected the whole signature even to the middle initial of his name. Under this signature in the handwriting of the' deceased were written the words “Am going to make a new will.” This paper was in an envelope marked as the will of the deceased which had been sealed, and later opened at the end.

The son of the deceased, who is the executor named in the will, testifies that he took the will from the safe after his father’s death in its present condition and that he believes no'one had access to the safe except his father. The will was holographic and made in 1888 and divided his property among his children, issue of a deceased child, and his wife. Subsequently his wife died and one of his daughters married and died leaving two children.

The will comes directly from the safe of the testator to the court with not the least suspicion of its having been tampered with by any person.

Furthermore the words “Am going to make a new will ” written by the deceased below his canceled signature indicate that he himself canceled the signature.

We have then these undisputed facts:

A will eighteen years old.

Several important changes in the family of testator after the making of the will.

From these facts a court is allowed to draw but one conclusion, the legal conclusion of revocation. Matter of Hopkins, 73 App. Div. 559; 172 N. Y. 360; Matter of Brookman, 11 Misc. Rep. 675; 67 N. Y. St. Repr. 397; Matter of Philp, 19 N. Y. Supp. 13; 46 N. Y. St. Repr. 356; Matter of Alger, 38 Misc. Rep. 143.

The fact that the testator was acquainted with the law of wills strengthens the presumption of revocation by cancellation, since the method adopted by him has long been recognized as a proper and legal manner of revoking a will.

Let a decree be prepared denying probate.

Probate denied.

Cite This Page — Counsel Stack

Bluebook (online)

51 Misc. 156, 100 N.Y.S. 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proving-the-last-will-testament-of-miller-nysurct-1906.

Opinion

Related

Cite This Page — Counsel Stack