Opinion
July Term, 1902.
J. Aspinwall Hodge, Jr., for the appellant.
J. Mayhew Wainwright, for the respondent, American Society for the Prevention of Cruelty to Animals. John Vincent, for the respondent Nieman.
The paper propounded for probate is written upon pages 1, 3 and 4 of a sheet of legal cap paper; the reverse side, being page 2 of the first sheet, is blank. The instrument is a holograph, it being conceded that it is entirely in the handwriting of the deceased, except the signature of the three subscribing witnesses, to which is attached their respective places of residence. The testator subscribed his name to the will prior to the witnessing of the will, but not in the presence of the witnesses. On the same line to the left of the signature of the first witness appears in the handwriting of the testator the word "Witness." There is no formal attestation clause attached to the will, nor is it otherwise witnessed except as above stated. Two only of the subscribing witnesses testified in the proceeding for probate, and neither of these witnesses saw the testator affix his signature to the will, but one testified that the signature of the testator was signed to the will at the time he (the witness) signed it, and that the testator stated to both that it was his will and requested them to sign as witnesses, which they each did in the presence of the testator and in the presence of each other. The third subscribing witness was not present at the time of the execution of the will by the testator and the two witnesses who were sworn, nor does it appear why he was not called as a witness.
Attached to the will and written on the 1st and 3d pages of another sheet of legal cap paper, also written in the handwriting of the testator, is what was evidently intended to be a codicil. It was conceded, however, that it was not properly executed, and was not, therefore, offered for probate.
Upon the 1st page of the will was a margin separated from the body of the sheet by the usual marginal line which is ruled upon legal cap paper. To the left of the writing of the body of the will on this blank marginal space and running lengthwise of the 1st page was written in the handwriting of the testator the words "This will and codicil is revoked, Jany. 14/96," and under this line was the signature of the testator, "Fredk Akers." None of the words of this sentence and signature were written across, nor did they come in contact with, any of the writing of the will, except that a small portion of the lower extremities of some of the letters in the signature "Fredk" crossed three of the lower extremities of the letters on three lines. These words and letters, however, are perfect in themselves and are not in the slightest degree obliterated. On the left-hand margin of the 2d page of what purported to be the codicil, but in no wise crossing or canceling the writing thereon, appeared the following:
"This codicil and will is revoked "Jany. 14/96 "FREDK AKERS."
On the back of the 1st page of what purported to be the codicil was written the words,
"Revoked Jany. 14th 1896 "FREDK AKERS."
This writing, by which the revocation was attempted, is all in the handwriting of the testator. The learned surrogate decided that the will was duly executed as and for the last will and testament of the testator; that he had not revoked the same, and, therefore, he admitted the same to probate. From the decree of the surrogate entered upon such decision this appeal is taken.
The appellant upon this appeal raises two questions, first, that there was failure to prove either the acknowledgment of the testator's signature to the will, or that he signed it in the presence of both of the witnesses, and that it was never properly executed; and, second, that the will was canceled by the testator after its attempted execution, with the intent and for the purpose of revoking it, and that such intent and purpose were in legal effect accomplished. The statute provides (2 R.S. [9th ed.] 1877, § 40) that every last will and testament shall be executed and attested in the following manner: First, "It shall be subscribed by the testator at the end of the will;" second, "such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses;" third, "the testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament;" fourth, "there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator."
The signature at the end of the will was in the handwriting of the testator. It was, therefore, subscribed by him. He requested the witnesses to witness the will, saying that it was his will, that he was going south, and asked them to sign the same as witnesses. The witness Bunger saw the signature of the testator upon the will at the time he signed it as a witness, and both witnesses signed it in the presence of each other. The witness De Winters states that the testator requested him to sign his will, but he was not able to state whether he saw the signature of the testator at the time or not. This constituted a substantial compliance with subdivision 2 of the statute, and was a subscription, publication and acknowledgment, within the meaning of the statute. The rule in respect to holographic wills as to the manner and method of publication is not so close and severe as where the will is drawn and executed under the direction of an experienced scrivener. A substantial compliance with the statute is sufficient. ( Matter of Beckett, 103 N.Y. 167.)
Where the testator produces the paper subscribed by him, although such subscription is not made in the presence of the witnesses, but he declares it to be his last will and testament and requests the witnesses to attest it, it is sufficient as an acknowledgment of its subscription. ( Baskin v. Baskin, 36 N.Y. 416; Matter of Hunt, 110 id. 278.)
In the present case we have the fact that the subscription was actually made by the testator; that one of the witnesses saw and knew it; that the testator declared it to be his will; that he requested the witnesses to witness it as such. This, within the rule of the above authorities, constituted a substantial compliance with the statute as to subscription, acknowledgment and publication. It was not essential to the validity of the will that an attestation clause should be attached thereto, and a will witnessed in the form which obtained in this case is sufficient. ( Matter of Phillips, 98 N.Y. 267; Matter of Hunt, 42 Hun, 434.) This will, therefore, is to be regarded as the last will and testament of the testator, and force is to be given to it as such, unless the attempted revocation of the same is sufficient to accomplish that purpose.
Section 42, article 3, title 1, chapter 6, part 2 of the Revised Statutes (2 R.S. [Banks' 9th ed.] 1878) makes provision for the revocation and cancellation of written wills in the following language: "No will in writing, * * * 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 burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator and the fact of such injury or destruction shall be proved by at least two witnesses."
This statute, as is evident from its language, provides three methods by which a will may be revoked: First, by writing; second, by destruction in some one of the forms named in the statute, and, third, by the act of another person by the direction of the testator. In the present case the testator has evidently sought to revoke his will by writing, as he has done no act except to express his intention upon the margin of the paper upon which the will was written, as hereinbefore stated. It is clear that this attempted revocation is not in the form, nor is it evidenced as required by the statute. In order to revoke by writing it must be by some other will or some other writing declaring the revocation, and executed with the same formality as is required by the statute for the original execution of the will. It needs no argument to show that the writing which the testator made fails in compliance with this provision of the statute. If, therefore, the statutory provision is mandatory, there has been an evident failure to revoke this will by writing. That it is so mandatory is decided in many cases. In Lovell v. Quitman ( 88 N.Y. 377) the court, speaking through Judge DANFORTH of this provision of the statute, said: "Now, by the first phrase, the repentant testator is required to write out the proposed alteration, select his witnesses, and make to them an acknowledgment or declaration that the act is his; and so far, the language permits but one inference or construction; that that act becomes effectual whether it relates to the whole will or some portion only of the will." A like doctrine has been held in other jurisdictions. ( Will of Mary P. Ladd, 60 Wis. 187; Howard v. Hunier, [Ga.] 41 S.E. Rep. 638.) In the former case, the statute under consideration was in all substantial respects the same as the statute of this State. The opinion therein contains an exhaustive discussion of the whole subject and cites and reviews nearly all of the authorities both in this country and in England bearing thereon. In the latter case, the Supreme Court of Georgia recently and exhaustively examines the subject and reaches the same conclusion.
It is evident, therefore, that this will was not revoked by the writing indorsed thereon, as it falls far short of making compliance with the statute governing the subject. It is claimed, however, that the act operates as a revocation by the second method provided for in the statute. The will itself is not burnt, torn, obliterated or destroyed. Consequently, it must be that the act of the testator had the effect of canceling the same, in order to make application of this provision of the statute. An examination of the will, however, does not disclose the slightest mark upon the body of the will which in any form cancels or obliterates it in any part. On the contrary, it is quite evident that the surname of the testator is placed slightly above the line of the given name, and evidently for the purpose of avoiding contact with the words of the will, and the whole writing has not canceled a single letter. There can be no such thing as a cancellation of an instrument, either as a physical fact or as a legal inference, unless the instrument itself is in some form defaced or obliterated. Such is the express definition of the term in legal significance. (1 Burr. Law Dict. 177.)
It has been held in several cases that even cancellation and obliteration of some parts of a will do not have the effect of destroying it as a whole. Thus, in Jackson v. Holloway (7 Johns. 394) the testator made a will devising certain land of which he was possessed to his four sons, and after its execution, having become possessed of other land, he altered his will by erasures and interlineations so as to extend the devise of the land to all of which he should die seized, and indorsed a memorandum upon the will to that effect. This memorandum was improperly attested, and the court held that there was failure to devise the subsequently acquired land, but that the erasures and interlineations did not have the effect of destroying the will, and it remained a good instrument as to the land first devised; as to the land subsequently acquired, it descended to the heirs at law. To the same effect is Quinn v. Quinn (1 T. C. 437); Matter of Potter (33 N Y St. Repr. 936).
These decisions proceeded upon the ground that there must be not only the physical act of cancellation in some one of the forms mentioned in the statute, but that the act must be accompanied by the intent to cancel and destroy the instrument as a will. It must follow as a necessary corollary that the intent to cancel or revoke is insufficient to accomplish such a result unless it is accompanied by the physical act working it. In no case which has been called to our attention has a will been held to be canceled unless there was some physical act of cancellation. The mere writing of an intent to revoke is insufficient, even though it may indicate an intent to cancel, where it is unaccompanied by any physical act of cancellation. Such is the doctrine announced in Warner v. Warner's Estate ( 37 Vt. 356). That case carried the doctrine of cancellation beyond that of any other reported case, and has been several times criticized as being unsound in law. ( Will of Mary P. Ladd, supra; Howard v. Hunter, supra; 1 Redf. Wills [4th ed.], [*318], 323-326.)
But giving full force to the doctrine of the Vermont case, it falls short of establishing a cancellation upon the facts now before us. Therein the testator not only wrote upon the will, "This will is hereby cancelled and annulled. In full this 15th day of March in the year 1859," but he also erased from the will the words "In testimony whereof, I here, I have;" and he also wrote on the outside of the 4th page of the will, "Cancelled and is null and void. I. Warner." There was, therefore, in that case absolute erasure of some of the words of the will, and in two places a statement of cancellation signed by the testator.
Here we have no obliteration whatever, and nothing except the writing upon the margin of the will and the purported codicil. In all of the cases to which our attention has been called there has been a physical cancellation of some of the words of the will, accompanied by an intent to cancel. ( Probate of Will of Clark, 1 Tuck. 445; Matter of Philp's Will, 19 N.Y. Supp. 13; Dan v. Brown, 4 Cow. 483.) The great weight of authority is to the effect that a mere writing upon a will which does not in anywise physically obliterate or cancel the same, is insufficient to work a destruction of the will by cancellation, even though the writing may express an intention to revoke and cancel. Where a will is sought to be revoked solely by writing, it must conform in that respect to the requirement of the statute, and, failing in that, it does not revoke the will, even though there may be a clear intention so to do. In the present case, the testator attempted to revoke his will by written words; his act was clearly not in compliance with the statutory requirements, and, therefore, it failed of effect.
It follows that the decree of the surrogate admitting this will to probate was correct. It should, therefore, be affirmed, with costs to the respondents payable out of the estate.
O'BRIEN, INGRAHAM and McLAUGHLIN, JJ., concurred; VAN BRUNT, P.J., concurred in result.
Decree affirmed, with costs to respondent payable out of the estate.