
    In the Matter of the Probate of a Paper Propounded as the Last Will and Testament of George Schofield, Deceased.
    (Surrogate’s Court, New York County,
    May, 1911.)
    XVills — The testamentary instrument or act — Revocation and alteration— Evidence—Wills not found — Presumption of revocation by destruction — Will executed in duplicate.
    In a proceeding for the probate of a will, where it appears that the will was executed and that the authentic or the example produced, in court was left in the possession of the counsel who drafted it but the other example was kept by the testator in his safe, until a certain day when lie took it out of his safe and put it in his pocket, after which it was never seen again, it must be inferred from the disappearance of the latter example that the will had been revoked by the testator in his lifetime, and probate of the. authentic must be refused.
    Proceedings upon the probate of a will.
    Hirsch & Pasquín (Emanuel Newman, of counsel), for proponent.
    Benjamin F. Feiner, for contestant.
    Abraham Lehman, for legatees.
   Fowler, S.

This is a very interesting cause, and it has been remarkably well presented by counsel for all the parties in court.

Emil Schofield, the executor named in the duplicate wills of George Schofield, deceased, presented one of such papers for probate in the ordinary course. The duplicate was not produced, and in the petition for probate no mention is made of the fact that Mr. Schofield’s will was executed in duplicate.

The widow of George Schofield contests the probate of the “ authentic ” or the example produced in court, and he--, fore the hearing began the executor declined to enter into any contest, in support of the will, fearing that, if" unsuccessful, he might be charged with the costs. See Matter of Leask, 197 N. Y. 193.

It is ■ obvious that the family of George Schofield, his widow and their only child, do not favor a decree of probate, and that the real parties before the court interested in maintaining this proceeding to probate are three nieces of George Schofield, who by his will, were given trifling legacies amounting to $Y50 in the aggregate. It was the brother of these legatees who was the draftsman and attesting witness of the duplicates under consideration and who gave evidence in support of the probate. It appears of record that letters of administration on the estate of George Schofield were issued to his widow pursuant to a decree of this court entered June 9, 1910.

That one of the duplicates, the authentic,” was duly executed under the Statute of Wills was established on the hearing and is not-controverted. The other example in duplicate was not produced in- court. The opposition to probate is based on an allegation of revocation, and this allegation is the decisive issue in this proceeding.

That George Schofield executed his will in duplicate parts is conceded, and w-as sought to be established on the hearing, although one of such parts is missing and could not be produced, as above stated. No allegation appears of record in the petition for probate -claiming in effect .that the missing duplicate had been lost or destroyed since the death of George Schofield. The petition for probate is in the ordinary form and is silent on the subject of the example not produced in court. The facts in relation thereto are, however, alleged in the contestant’s answer and objections1, and were amply proved on the hearing.

The attorney who drew the will of George Schofield was an attesting witness, and he gave testimony of Mr. Schofield’s instructions to draw duplicate wills in order to secure greater safety against destruction or loss. This witness was interrogated without objection concerning.the contents of the missing duplicate, and he stated -that it was an exact duplicate or facsimile of -the paper propounded. Whether he should have been so interrogated concerning the contents of a paper not produced and not sought to be established as a lost will seemed to the surrogate doubtful (Wilson v. O’Leary, 7 Ch. 448; Matter of Cunnion, 201 N. Y. 123; Bethany M. E. Church v. Brooks, 143 App. Div. 685)., and the surrogate ventured to so intimate to counsel on the hearing, leaving it to them to take such course thereafter as they deemed advisable.

The testimony disclosed that after execution one of the duplicate examples of Mr. Schofield’s will was left in the possession of the counsel who drafted it. This was the authentic, produced on the trial. The other example or duplicate was in the possession of the testator himself, and in his lifetime was kept in his safe at his place-of business in the city of New York. It is in evidence, -and I think is not controverted, that Mr. Schofield, the testator, some time before April 25, 1910, took the duplicate example, then in his custody, out of his safe and placed it in his pocket. There is no sufficient evidence that such duplicate example was ever seen -again by any one. The testator died on the following 30th of May, 1910. A fruitless search was then made for the duplicate not produced, hut it was not found. It had disappeared.

The attempt to break the effect of such disappearance - by proving access to the testator’s safe by some one interested in the destruction of the duplicate was so inconclusive as to lead to no positive results, and this part of proponent’s case must be ignored in the conclusion. There is proof that the testator’s estate had greatly lessened in value between the time of the execution of the duplicates and the date of his death. Such change in testator’s circumstances may or may not have bearing on the issue of revocation. It is, however, to be mentioned as established on the hearing.

Such being the facts proved in this case, we proceed to the consideration of the law applicable under the peculiar circumstances mentioned. Neither the Revised Statutes nor the Decedent Estate Law contains any mention of wills to be executed in duplicate. Wills executed in duplicate parts have, however, been before the courts of this State and are freely recognized in practice. When -statutes do not control, courts are compelled, in matters arising on wills and testaments, to have recourse to the fundamental law established by organic acts of government. This, in the last resort, is always the law of the superseded and subordinate government of Hew York. The law of that subordinate government is presumed, in the absence of proof to the contrary, to coincide with the law of England, as established prior to the independence of Hew York.

It is never denied that the law of England, recognized in respect of duplicate wills, was translated to Hew York by competent authority, and finally incorporated in its present jurisprudence by fundamental or organic acts of government too familiar and numerous to require detailed mention. Vanderheyden v. Reid, 1 Hopk. 408; Goodrich v. Pendleton, 4 Johns. Ch. 549, 552; Betts v. Jackson, 6 Wend. 173, 185; Robins v. Coryell, 27 Barb. 556. The law of England (as is the case with our own), in reference to wills executed in duplicate, was also largely derivative, and is controlled by the principles of the canon, or, in the last resort, of the civil law. It was this law which in England was generally .applied in testamentary causes, and for this reason the practitioners in the Ecclesiastical Courts having jurisdiction of such causes were required to be doctors of the civil law, even after the English reformation and until recent times. Swinburne, Pt. VII; 3 Holdsworth Hist. Eng. Law, 423. Thus it is that the Institutes of Justinian, in the final analysis, furnish the general reason for duplicate testaments, stating in -substance that they may be sometimes necessary for numberless reasons, as, for instance, when a man goes upon a voyage and desires to take a memorial of his last wishes with him and to leave one at home. Each duplicate must, however, have been made with the prescribed forms. 2 Just. 10, 13. But one only of the duplicates was recognized as “ authentic.” Wills executed in duplicate were very familiar to the civilians, and they are frequently mentioned authoritatively in the Pandects, where it is apparent also that the production of both examples might be required. 28 Dig. 1, 24; 37 id. 11, 1, 5. In the mode roughly outlined it became the rule, and .has always been the rule of the probate jurisdictions in this State, or recognized in this State, that only one of the duplicates (called the authentic) need be probated, but that the other must be produced in court, as a revocation of one part is a revocation of both. Killican v. Lord Parker, 1 Lee, 662; Boughey v. Sir William Moreton, 2 id. 532; Grossman v. Grossman, 9.5 N. Y. 145, 150; Roche v. Nason, 185 id. 128, 135.

With this brief explanation of what is conceived to be the rise and origin of the present law regulating wills executed in duplicate, we come to the consideration of the real question in the cause before us: Is George Schofield’s will, executed in duplicate, revoked so as to authorize a denial of probate to the authentic, or, in other words, to the example produced and filed in court?

In other probate jurisdictions some nice questions of revocation of wills executed in duplicate have arisen where the testator, having possession of both examples, destroys one but not the other. Jarman Wills (6th ed.), 151; Managle v. Parker (N. H. 1908), 71 Atl. Rep. 637; In bonis Hains, 5 N. of C. 621; Pemberton v. Pemberton, 13 Ves. 310. Pemberton v. Pemberton seems to be a leading case on that point, and the will was there finally held, against the obvious opinion of the Lord Chancellor, not to have,been revoked. The presumption of revocation in such a case is, of course, a weak one, for the testator, when possessed of both examples," is at liberty to destroy them, and yet he does not do so. But as this state of facts does not exist in this cause the authorities bearing on such a state of facts need not be considered, except to remark -that the surrogate has found no adjudication bearing on this precise point in this State. In the present cause it is established that Mr. George Schofield, the testator, did not have possession of both examples or duplicates, the custody of the authentic or the example actually produced for probate was not in his custody in his lifetime, and no presumption, it is thought, is to be drawn from the passive conduct of the testator in respect of that example. He may have been of the opinion that its destruction was not necessary to a revocation, or, as his nieces were named in the duplicate as legatees, he may not have desired them to know of the revocation. What his thoughts were we do not know and cannot consequently consider.

That the revocation of the example in the testator’s custody" works a revocation of a duplicate will as a whole is the established law of England. Burtonshaw v. Gilbert, Cowp. 49; Boughey v. Moreton, 3 Hagg. 191, n.; Jones v. Harding, 58 L. T. Rep. 60; Paige v. Brooks, 75 id. 455; Colvin v. Fraser, 2 Hagg. 266. The law of this State is precisely the same on this point, judging from the expressions of our courts of last resort. In Betts v. Jackson, 6 Wend. 185, Chancellor Walworth gives the stamp of his distinguished approval to the decision in Colvin v. Fraser, and refers to that decision at length. In Crossman v. Crossman, 95 N. Y. 150, the Court of Appeals distinctly say of duplicate wills that a revocation of one part is a revocation of both, and Cross-man v. Crossman is cited as an authority in the late decision rendered in Roche v. Nason, 185 N. Y. 128, 135. Stich an expression of a final tribunal in this State is of course binding on -a court of first instance. It was evidently followed by Surrogate Rollins in Asinari v. Bangs, 3 Dean. 385, although in that cause the example in testatrix’s own custody was proved to have been torn to pieces by testatrix herself. Here the facts -are not the same. In this cause there is no proof that the testator actually destroyed the example in his custody, but it was not found at his death, nor was it produced at the hearing in this proceeding. It has disappeared. . There can be no doubt that to such a state of facts we must apply the established presumption “ that a will proved to have had existence and not found at the death of testator was destroyed animo revocan&i.” Knapp v. Knapp, 10 N. Y. 273, 278; Matter of Cunnion, 201 id. 123; Matter of Wear’s Will, 116 N. Y. Supp. 364.

I accordingly hold that George Schofield’s will was revoked by him in his lifetime, and that probate of the paper or example produced in court must, therefore, be denied. Let a decision and decree in conformity with this opinion be presented to me for my signature. There will be no provision for costs-inserted in such decree except for a guardian of the infant respondents.

Decreed accordingly.  