Quinn v. Quinn

1 Thomp. & Cook 437

• Court: New York Supreme Court
• Decided: September 15, 1873
• Status: Published

Opinion

Barnard, P. J.

The appeal in this case brings up for review three questions.

First. Was the will executed and attested in the manner required by law ?

From a careful review of the testimony I think there is no doubt but that it was. There are two witnesses to the will, both of whom were examined. The witness who drew the will, Mr. Tresider, is a lawyer, used to drawing wills, and having knowledge of the requirements of a due execution of the will under the statute. The attestation clause is full. This witness testifies fully to facts which make a complete execution of the papers as a last will.

The other witness (White) testifies that the testator said at the time it was signed by him, he wanted him (witness) to see his (testator’s) signature; that he cannot say for certain that testator said it was his will, but thinks he did. “ I saw him write his name, and ask me himself.”

It is very manifest that the testator duly executed the will. Indeed, there is really no evidence against the positive evidence of these witnesses, except that a witness, Cowan, who was present in testator’s store at the execution of the paper, did not hear the publication, or know that a will was being executed.

There is some proof that testator was addicted to intoxicating drinks; but the proof utterly fails to show any such condition of mind as would invalidate his will.

The second question presented is, was the will revoked ? The proof fails to show any execution of a later will. There is some loose, but, to me, untrustworthy evidence of declarations of testator of a date subsequent to the date of this will, that he had revoked it, and that he was seen to have a later will, apparently duly executed. No execution of a later will was proven; and even if the testator did say he had revoked it, it would fail to accomplish the object, unless by revocation duly executed, or in one of the ways provided by statute.

The only important question in the case arises under the peculiar facts of. the case established by the will itself.

It has been partially obliterated by the testator, with a view in some cases of destroying legacies under it, and in some cases the testator has attempted to alter his legatees, and he has attempted to alter one of his executors. It is manifest that he did not intend by these erasures and interlineations to revoke the whole will, but only parts of it. I think clearly the will is not revoked entirely by the evidence. Is it revoked as to the portion obliterated ? Dpon this point I find but two1 cases in our State—one under a former statute as to wills — Jackson v. Holloway, 7 Johns. 394 — where it was held that an interlineation, with a view to enlarge the devise, was void, unless the will was ré-published and re-attested.'

The will was in that case held to stand as originally made.

The other cáse is McPherson v. Clark, 3 Bradf. 92, where a testator obliterated a devise to his daughter and changed the residuary clause so that instead of passing to his children, it should pass to his “ two sons; ” the surrogate held the will good as it existed before 4he erasures. In giving the decision, however, the surrogate says, a will may be partially revoked by obliteration under our statute as it now exists. The point was not presented in the case, and the decision made was right under all the cases. In the case now presented, there are obliterations of a legacy or legacies, and no effort made to give the same to another, and thus the point is presented whether there can be a partial revocation by obliteration. The statute reads as follows:

“ No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of destroying the same.”

I think this statute admits of no revocation of an executed will by obliteration, except an entire obliteration with intent to revoke the whole will.

I have carefully examined the cases cited by the surrogate in McPherson v. Clark, and by the learned counsel on the argument of the appeal, and think none of them justify the surrogate in this ■case, in leaving out of his record any portion of the will as originally executed. In the ease of Onions v. Tyree, 1 Pere Wms. 343, it was decided that a void will, which contained a clause revoking all former wills, did not operate as a revocation.

*

In Short v. Smith, 4 East. 419, a testator who had erased the name of one trustee and inserted in the place two other names, was held not to have revoked any part of the will. After giving the judgment, the court say, “that there are grounds on which it may be contended that the effect of the obliteration, at most, was to revoke, as to (the erased trustee) Spelman. In Burkett v. Burkett, 2 Vern. 498, a testator having devised a copyhold estate, directed certain parts of his will to be obliterated, but left the ¡devise of the ■copyhold estate untouched. Held, that the will was a good will, and that the copyhold estate passed under it. In Benton Shaw v. Gilbert, Cowp. 49, a testator had executed a will in duplicate, and ■subsequently canceled by another will all former wills; it was held that a cancellation of the last will did not re-establish a duplicate ■of the first will. In Goodwright v. Glazier, 4 Burr. 2512, a testator gave his land by a will, and then made a new will which gave the ■same land to the same person. He then canceled the last of the two wills. Held, no revocation of the first will. In ex parte The Earl of Ilchester, 7 Ves., Jr., 348, it was decided that a testamentary ■appointment of a guardian was not revoked by a subsequent testamentary appointment, not executed according to the statute, and not directly importing revocation.

The case of Larkins v. Larkins, 3 Bos. & Pul. 16, is the nearest .in point to the present case. There the estate was given by will to two persons in trust, and the testator subsequently erased the name of one; 'it was held that it was a revocation onlyy/ro tanto. In this cáse the court say that “ if the remaining devisees were to acquire any. estate which they had not before, something beyond a mere revocation would be necessary.”

In the case before us, in some instances the testator has attempted to give.an obliterated legacy to another person. The surrogate has, as to these,'upheld the "will as executed ; in other instances the testator has simply obliterated the legacy. The effect of this is to give the residuary legatees the erased legacy; in other words, to make a new will without complying with the statute requisites.

I think the surrogate’s decree should be modified so far as to admit the entire originally executed will to probate.

. Ordered accordingly.

See to the same effect, Mudy v. Ulrich, 69 Penn. St.; 8 Am. Rep. 238.