Smith v. Wait

Headnote

A recital, in a will, that the testator has executed a deed of certain premises to one of his sons, is evidence of a perfect execution of such deed, and that the grantee has the title to the premises ; so as to bar an action of ejectment brought by one of the heirs of the testator, for the recovery of an undivided portion of such premises.

The destruction of a will, by the testator, is not a revocation thereof, unless he intends thereby to revoke it. And a lunatic can have no such intent.

If a man is incompetent to make a valid will, he is equally incompetent to revoke a will made previously.

Ejectment, brought to recover the undivided fourth part of about 94 acres of land, situate in the town of Clifton Park, in the county of Saratoga, which the plaintiffs claimed in fee in right of Mrs. Smith. The defendants pleaded the general issue. The cause came on to be tried before Willard, circuit judge, at the Saratoga circuit, in December, 1846. On the trial, the plaintiffs proved that Joseph Wait died November 5,1845, in possession of the premises in question, aged about 69 years. That he left him surviving, four children and heirs at law, of whom Alba, the wife of the plaintiff Lucas Smith, was one. That this suit was commenced January 29,1846. That both defendants were then in possession of the premises in question. The plaintiffs then rested, and the defendants introduced in evidence the last will and testament of said Joseph Wait, dated October 30, 1845, which will was duly proved before the surrogate of Saratoga county as a will of real and personal es-

upon the same day, at the request of said Joseph Wait, he got a former will of the said Joseph, which was destroyed by the testator just before signing the will above'‘mentioned. It appeared on the trial that the same land was devised by the old will to the defendant.George Wait; and it was insisted on the part of the defendants, that if, at the date of the last, the testator was incompetent to make a new will, he was incompetent to revoke the old one, which was executed before the alleged incompetency ; and that the plaintiffs were therefore not entitled to recover. The defendants’ counsel, on the contrary, insisted that the revocation of the old will was valid, and that the last will did not defeat the title of the plaintiffs, as the testator was incompetent to make it. The court held that if the testator was incompetent to make the last will, he was equally incompetent to revoke the other, and that the plaintiffs were therefore not entitled to recover, upon the evidence. To which decision the counsel for the plaintiffs excepted. The jury thereupon, under the direction of the court, rendered a verdict in favor of the defendants; and the plaintiffs, upon a bill of exceptions, moved for a new trial.