SEWELL, J.:

The will in question, as originally made, contained six clauses. The 1st directed the payment of the debts and personal expenses. The 2d gave $100 for the care of the cemetery lot of the deceased. The 3d bequeathed $50 to her niece, Louise Stoddard. The 4th clause gave the articles mentioned in a memorandum to the persons named therein, and was of no effect. The 5th was as follows: "All the Rest, Residue and Remainder of my estate, real and personal, of which I may die seized and possessed, or which I may be entitled to receive at the time of my death, I give, devise and bequeath unto my cousin, Alice F. Soles, of the city of Schenectady, N.Y., absolutely."

The last clause provided: "Lastly, I hereby nominate, constitute and appoint my said cousin, Alice F. Soles, and my cousin, Mercilla E. Pratt, Executrices of this my last Will and Testament, hereby revoking all other and former Wills by me at any time heretofore made."

The will consisted of two typewritten sheets, and was duly executed January 15, 1904. It had a cover to which the two sheets were pasted. A copy of the will, except the attestation clause, was made partly by the deceased and partly by the residuary legatee. When these papers were found after her death, her name was torn off from the copy of the will, and pencil lines were drawn through the preceding words, "In witness whereof I have hereunto set my hand and seal this 15th day of January, 1904." The cover to the will was gone, and the top of the second page, which contained the last words of the 4th clause, "in the body of my will," and the whole of the 5th clause, had been cut or torn off, and was missing. The two sheets, when so found, were not fastened together and were in an envelope, in a chest, with deeds, letters, and other papers of the testatrix. The surrogate found "that the parts of said will so torn out and destroyed were the parts which disposed of about 90 per cent. of the estate of said deceased," and "that such mutilation and tearing of said will was done by the said Gertrude Van Woert with the intention and for the purpose of revoking the whole thereof."

The question whether a clause in a will may be revoked by the testator by being canceled or obliterated with the purpose of revoking it was considered and determined in Lovell v. Quitman ( 88 N.Y. 377). The court there held that no obliteration can be effective as to part, unless it altogether destroys the whole will, and the authorities are clear and uniform that provisions of the statute dealing with revocation and cancellation of wills (2 R.S. 64, § 42, now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 34), do not contemplate a revocation or alteration of any part of a will, except 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 a will itself was required to be executed. It is also well settled that the revocation depends on the testator's intention, and that where he has no disposition to revoke the whole will, but merely intended to destroy a clause or bequest already given, and the original language can be ascertained, the original will may be admitted to probate in the form and condition in which it was when originally executed. ( Lovell v. Quitman, supra; Burnham v. Comfort, 108 N.Y. 535. )

The question presented, therefore, is whether the will in question was mutilated by the testatrix with the intention of revoking the entire will. It would hardly be useful for this court to enter on an extended discussion of the circumstances disclosed by the record. It is sufficient to say that it is evident that the testatrix did not intend by the mutilation to revoke the entire will, but merely contemplated a revocation of the residuary clause.

It follows that the decree of the surrogate must be reversed and the matter remitted to the surrogate, with direction to admit the will to probate in the form and condition in which it was when originally executed, with costs of the appeal to each party payable out of the estate.

All concurred, except HOUGHTON, J., dissenting.

Decree of surrogate reversed upon questions of fact, and matter remitted to the surrogate with direction to admit will to probate, with costs of appeal to each party payable out of the estate.