
    (69 Hun, 157.)
    In re JOHNSTON’S WILL.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Wills—Revocation and Revival—Evidence.
    Testator made a will, and distributed Ms property among Ms relatives, including a niece. Subsequently, he drew up a paper, M the form of a new will, and complied with all the formalities for its publication, except that he did not declare to one of the witnesses that the paper was Ms last will, but said that he intended to make a change in Ms will, and declared the instrument “to be an alteration of Ms will.” TMs paper contained no clause revoking the first instrument, and in it testator attempted to give all Ms property to Ms niece. Subsequently, testator destroyed the second paper, with the intention of giving effect to the first instrument, but this intention was never put in writing. -Held, that the second instrument, at best, was merely a codicil, and that on its destruction the first instrument was revived.
    Appeal from surrogate’s court,. Queens county.
    Application for the admission of the last will of Robert H. Johnston, deceased, to probate. From a judgment, of the surrogate refusing to admit the instrument to probate, Mary E. Theall appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Josiah T. Marean and Benjamin W. Downing, for appellant.
    Deming & Walradt, (Horace E. Deming, of counsel,) for respondent.
    Robert Townsend, for executors.
   PRATT, J.

The facts material to the decision of this case are not in dispute. Robert Johnston made a will dated November 10, 1884, which was duly published with all requisite formalities. He thereby devised the house in which he lived to his niece Mary E. Theall, subject to certain charges, and bequeathed to her, substantially, all his personal property used in the house and about the grounds, together with a money legacy of $10,000. He bequeathed $1,000 to his sister Mary,, and $1,000 to each of several other relatives, and gave, devised, and bequeathed all the rest of Ms property to Ms brother William. Thereafter, and during 1885, the' testator drew up another paper, wMch he signed. He requested two witnesses to sign the same as subscribing witnesses. This paper purported to be, and was in the form appropriate to, a new and independent will, by which he gave, devised, and bequeathed all Ms property to his niece Mary E. Theall, and appointed her sole executrix thereof. The witnesses signed the same as requested. All formalities for the publication of this paper were observed, except the testator’s declaration to both witnesses that it was his last will and testament. The findings in this particular are inconsistent. Those in the decision are to the effect that he declared this paper to be his last will and testament. But the findings on contestant’s request are that the testator did not declare to one of the witnesses that the instrument was his last will and testament, but only declared that his purpose was to make a change in his will; and, again, that he declared the instrument “to be an alteration of Ms will.” The instrument contains no clause revoking any former will. Subsequently the testator destroyed tMs second instrument, with the intention of revoMng it, and with the intention of giving effect to the first instrument as his will, and that it “should stand” as his will,- but that intention was never manifested by any writing. That paper was then in his possession, uncanceled, and he then exMbited it to witnesses, and declared Ms intention that it should stand as his will, deposited it in his safe, and otherwise treated it as Ms only will. For aught that appears, he died under the belief, and I think we must so hold, on these findings and on this evidence. Ho question of capacity arising, the learned surrogate has held that the second instrument was this man’s last and independent will, and that it revoked the first one, because it altered the disposition of his estate. He has also held that its destruction, under the circumstances hereinafter stated, did not revive or reinstate the former will. This second paper was drawn by the testator himself, and all that was done thereafter by Mm respecting both instruments was apparently without advice of counsel, and without knowledge, of the technical rules governing such matters.

The first, and perhaps vital, question, is this: Did this testator ever revoke the first will? If yes, then to what extent? It has been answered that he did revoke it in toto, simply because the provisions of the second instrument were partly inconsistent with those of the first one. But that is not the turning point. Did he intend to revoke the first one in toto when he published the second one? Did he publish that document with that purpose? It may be conceded that, if the case were to turn on the force of the paper alone, we should have a pretty close question to decide. But here stands the plain finding that he never declared it to be Ms last will at all to the witnesses, i. e. to both of them. To one of them he declared it to be a mere alteration of his will, and not that it was his will or last will, or anything of that sort. It is perhaps fair, upon these findings, to say that he may have stated to the other witness that the instrument was his last will and testament; but on this finding, even if he did that, it was simply for the purpose of effecting an alteration in the first document. Here, then, we have a call upon these findings, where a man simply intended to alter his will by giving all his property to one of his formerly chosen legatees, i. e. to take nothing from her, but to take all from the others, and give that thus taken to this one, but, through failure to understand the technical requirements of law, he faffs to observe certain forms, and thereby places himself in a false position; and we are now asked to hold that this mistake in that regard shall frustrate his intention respecting his property. For my part, I cannot so hold. This is not the first time that we have declined to allow forms to frustrate substance. Under the circumstances I feel bound to hold that the second instrument cannot stand as an independent last will and testament, because it was not published as such. It was not declared to be a last will and testament to both subscribing witnesses, and that is essential to give it force and effect as a last will and testament. It therefore follows that, whatever else may have been its effect, there was" no revocation of the first will, in its entirety, either by implication or otherwise. What was, then, the force and effect of this second paper? It was designed and published as a mere alteration of the original will, and nothing more. In that view, it was, at best, a mere codicil to the original; and that involves the salvation—indeed, the republication—of the original, in its entirety, but attests a coincident modification .and revocation only of the inconsistent parts. But this case is peculiar in this: The will gave only a part of his property to Mary E. Theall. This second paper purported to give the whole of it to her. It is therefore especially plain that he never intended to take anything from her which was given by the original will. What he intended to do by the second paper was to confirm the whole of his original provision for her, and then increase that provision. 1c was in no sense a change in the origina!, so far as she was concerned, bur ;.n addition to it, just as he might have done by a new legacy or devise. The publication of the second instrument was therefore not inconsistent with the first in this respect, and hence was not a revocation of the legacy to Mary E. Theall. On the contrary, it was a recognition and reaffirmation of that original provision pro tanto, so far as it had any force and effect at all upon Mary E. Theall. It did, by implication, revoke the provisions of the original will, so far as it related to other legatees and devisees. It may be possible, though I shall hold otherwise, that they have lost the benefit of its provisions, on the theory that the destruction of the second instrument, anima revocandi, was ineffectual to revive the clauses which were there apparently revoked by implication. But I do not think that even that result should follow, for the reason that the statute does not, in turn, apply to such a paper as this second instrument was. And, besides that, I have serious doubt if the testator’s declaration to the witnesses to the second paper was sufficient to give it any force, even as a codicil. I shall therefore advise that the surrogate’s decree be reversed, and that the instrument dated November 10, 1884, shall be admitted to probate, in toto, as testator’s last will and testament. All concur.  