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In re Brewster's Estate

76 N.Y.S. 283 Court N.Y. App. Div. Decision date 1902-05-01 English

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p. 283
In re BREWSTER’S ESTATE.
(Supreme Court, Appellate Division, Second Department.
May 1, 1902.)

Headnote

Wills—Destruction of Revocatory Will—Revival—Republication.
Under the statutory provision that if, after the making of any will, the testator shall execute a second will, the destruction of such second will shall not revive the first, unless it appear by the terms of such revocation that it was his intention to revive his first will, or unless, after such destruction, he shall duly republish his first will, the destruction of a will revoking a former one, with intent on the part of testator to revoke the one destroyed, does not revive the former one.
Appeal from surrogate’s court, Westchester county.
In the matter of Brewster’s estate. Decree of the surrogate denying probate of will affirmed.
The following is the opinion of the court below (SILKMAN, S.):
“The will offered for probate is dated March 16, 1896. The testimony shows that it was signed by the testatrix in the presence of witnesses, and ■declared by her to be her will, and the witnesses were duly requested to sign as such, and they did so in her presence. All the formalities of the execu
p. 284
tian were carefully attended to, and the instrument would be entitled to probate were it not for the fact that in October, 1898, the testatrix had a will drawn by Mr. Thomas Leary, and it was executed by her in the presence of George S. Edgers and William I. Olmsted, as subscribing witnesses. The will was written upon a blank form published by Williamson Law Book Company, publishers, Bochester, N. Y., and entitled “Will (394.)” This form has printed in it the following words: “Hereby revoking all former wills by me made.” It also has printed on it a full and complete attestation clause. From the testimony of Mr. Leary, and of the two subscribing witnesses, Olmsted and Edgers, as well as that of Mr. Samuel Watson, who subsequently destroyed the document, at the request of the testatrix, I have no doubt that this instrument of October, 1898, was a valid testamentary document, and properly executed. We thus have an instrument which is sufficient to revoke the paper offered for probate. The testimony of Mr. Watson shows clearly the intention of the testatrix to destroy, and thereby revoke, the second instrument; but this does not reinstate or republish the first. There can be no mistake in the language of the statute: ‘If after the making of any will the testator shall duly make and execute a second will, the destruction, cancellation or revocation of such second will shall not revive the first will, unless it appear by the terms of such revocation that it was his intention to revive and give effect to his first will, or unless after such destruction, cancelling and revocation he shall duly republish his first will.’ In order to re-establish the first will it must be republished with the same formalities that are required in the execution of a will. These formalities are absent here, and any declarations which the testatrix may have made have no probative force or effect. See In re Stickney’s Will, 31 App. Div. 382 , 52 N. Y. Supp. 929 , affirmed in 161 N. Y. 42 , 55 N. E. 396 , 76 Am. St. Rep. 246 . Let decree and findings be submitted denying probate.”
Argued before GOODRICH, P. J„ and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
John H. Eerguson, for contestant.
Smith Lent, for proponent.

Decree affirmed, with costs, on the opinion of the surrogate of Westchester county.

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