
    In the Matter of the Probate of the Last Will and Testament of John B. Wear, Deceased. Frank M. Wear, Appellant; Sarah J. Leverich, Respondent.
    Second Department,
    April 23, 1909.
    Will — revocation by second will — presumption where will cannot be found—when no revival of prior will — proof necessary to show that prior will was revoked by subsequent lost will.
    A duly executed will containing a revocation clause revokes a prior will and a destruction of the second will with the intention of revoking it does not revive the former will.
    Where a will which has been in the custody of the testator is not found after his death, it is presumed that he destroyed it with an intention to revoke. Although sections 2621 and 1865 of the Code of Civil Procedure provide that a lost will shall not be probated unless it was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and unless its provisions are clearly proved' by at least two credible witnesses, a correct copy being equivalent to one witness, the sections need not be complied with in order to establish that a second will containing a revocation clause, but not found after the testator’s death, was duly executed so as to defeat the probate of the prior will. It is one thing to probate a lost will and another thing to establish that a second will revolting the former will had been duly executed and left in the possession of the testator.
    Thus, the fact of the execution of the second will may be established by the testimony of a person who drew and witnessed both wills where the other subscribing witness to the second will is dead.
    Appeal by Frank M. Wear, the proponent, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 6th day of October, 1908, refusing to admit to probate an instrument in writing propounded as the last will and testament of John B. Wear, deceased.
    
      Louis Mathot, for the appellant.
    
      H. F. Lawrence, for the respondent.
   Woodward, J.:

On the 18th day of June, 1900, John B. Wear executed a will. This will was drawn by his attorney, George Eckstein, who became one of the subscribing witnesses, Mrs. Levina M. Carew being the other witness. This is the will which has been rejected on the offer for probate. In September, 1904, the decedent met his attorney, Mr. Eckstein, and requested him to draw a second will. The latter took the will of June, 1900, containing a revocation clause, to his office, and with that will before him drew a new will, which disposed of all of decedent’s estate and contained a revocation clause. This new will was duly executed, the witnesses being George Eckstein (who witnessed the prior will) and George H. Smith, the decedent’s family physician. This new will was taken into possession by the decedent after it was executed on the 15th day of September, 1904. On the 29th day of February, 1908, the decedent died, leaving a widow, three sons and a daughter. The will of June 18, 1900, was offered for probate by one of the sons, and objections were made to its probate by the daughter. George H. Smith, the second subscribing witness to the will of September, 1904, died on the 7th day of September, 1908, two weeks before the hearing on the citation. It was shown that Frank M. Wear, the proponent, had made a search for the will of September, 1904, but had failed to find the same. There seems to be no question that the second will, if established, operated to revoke the will of June 18,1900, and that, having been in the custody of the testator, and not found after his death, the presumption arises that it was destroyed by him, with the intention of revoking the same, and that this does not operate to reinstate the former will. The objection urged on this appeal from the decree of the surrogate refusing probate to the first will is that the proof offered and received of the execution of the second will is inadequate. The appellant contends that the proof must be of the character required by sections 2621 and 1865 of the Code of Civil Procedure, entitling a lost will to probate. The statutory requirement is that the provisions of such lost will must be established “ by at least two credible witnesses, a correct copy or draft being equivalent to one witness.” We are of the opinion that this contention cannot be sustained; it is one thing to admit to probate a will disposing of a man’s estate where the will cannot be found, and quite another thing to merely establish that a second will, revoking a former will, has been duly made and executed and left in the possession of the decedent. In the one case we are assuming to dispose of property in a manner different from that prescribed by law in the absence of a will, while in the latter case we are merely permitting the property to descend in the manner which the law designates. In the case now under consideration the execution and delivery of the will to the decedent was proved by Mr. Eckstein, who drew both wills and who was a subscribing witness in both of them. He would have been entirely competent to have proved the execution of the will if it had been found, the remaining subscribing witness being dead, and he was equally competent to prove the execution and delivery of the will to the decedent, not for the purpose of establishing a lost will, but to show that the will offered for pi’obate was not the last will and testament of the decedent; that such an instrument was executed and left in such a custody that the presumption is that it was destroyed, with the intention of revocation, with the result that the decedent died intestate. We are of opinion that the authorities relied upon by the learned surrogate support his conclusions, and that the decree refusing probate to the will of June, 1900, was properly made.

The decree appealed from should be affirmed.

Jenics, Gaynor, Burr and Rioi-i, JJ., concurred.

Decree of the Surrogate’s Court of the county of Kings affirmed, with costs.  