
    Martha B. Bayley & others vs. Joseph C. Bailey. Same vs. Same.
    The term “ will,” in St. 1843, c. 92, includes every kind of testamentary act, taking effect from the mind of the testator, and manifested by an instrument in writing.
    An inhabitant of this state, while in the state of New York on a visit, being sick and in apprehension of death, executed an instrument, in the presence of two witnesses who attested it at his request, in the following terms: “ It is my wish that the will that I made be destroyed, and my estate settled according to law.” Before signing his name thereto, the paper was read aloud to the testator, and he was asked if it would answer, to which he replied that it would. It was held, that this instrument was executed in the manner, and with the formalities prescribed bylaw, to admit it to probate in the state of New York, as a testamentary instrument or codicil, and therefore, that under the statute of 1843, c. 92, § 1, it might be proved, recorded, and proceeded in as such in this state.
    These were appeals by the widow and children, being the heirs at law, of Richard W. Bayley, late of Boston, deceased, from decrees of the judge of probate for this county, severally allowing a certain instrument, and disallowing a certain other instrument, as the last will and testament of the deceased.
    The cases were heard together before Wilde, J., and the facts not appearing to be in dispute, the questions arising thereon were reserved for the consideration of the whole court, upon the report of the judge, which was in substance as follows: —
    Richard W. Bayley, the testator, an inhabitant of this state, esident at Boston, made a will dated March 2d, 1847, disposing of his real and personal estate, the due execution of which, and the sanity of the testator, at the time of such execution, were proved by the testimony of three subscribing witnesses. He also made a codicil to the same, bearing date February 28th, 1848, which was duly executed and proved in like manner. The executors named in the will having declined the trust, the will and codicil were offered for probate, and proved in the probate court, by the appellee, who was the son-in-law of the testator, on the 16th of October, 1848.
    The appellee, also, on the 23d of October, 1848, presented i petition to the judge of probate, in which he set forth, that the testator above mentioned died at West Troy, in the state of New York, on the 31st of July, 1848; that on the day of his death he made his last will and testament, and executed the same, in conformity with the laws of the state of New York, being then of full age, of sound mind, and having last dwelt in Boston; wherefore the petitioner therewith presented the same to the judge of probate, to be approved, allowed, and recorded as the law should direct, declaring, at the same time, that he did not wish to be considered as desiring the probate of any prior will of the testator. The instrument, thus presented, for probate, was in the following terms : —
    “ West Troy, July 31, 1848. Mr. Joseph C. Bailey. It is my wish that the will that I made be destroyed, and my estate settled according to law. R. W. Bayley. In presence of Joseph Bates, Esther G. Bates.”
    Upon the petition for probate of this instrument, public notice having been ordered and given to all persons interested, a hearing took place in the probate court, and the judge thereupon decreed, on the 8th of January, 1849, “ that the probate of said writing, as a will, be rejected, and that said petition be dismissed.”
    The appellants, on the 27th of October, 1848, appealed from the decree, allowing and approving the will of March 2d, 1847, and the codicil of February 28th, 1848, assigning as reasons; 1st. Because the will and codicil were revoked by the instrument executed at West Troy, on the 31st of July, 1848; and, 2d. Because the judge of probate refused to approve and allow the same as the last will and testament of the testator.
    The appellants, also, on the 15th of January, 1849, appealed from the decree, refusing to allow and approve the instrument of the 31st of July, 1848, as the last will of the testator, on the ground, that the same, having been executed in conformity with the laws of the state of New York, regulating the execution of last wills and testaments, ought to have been approved and allowed as such in this commonwealth.
    The appellants contended, on the trial of the appeals, that the instrument executed at West Troy, being subscribed by the testator in the presence of two witnesses, whose names were signed thereto as such, as required by the law of the state of New York, ought to be allowed in this state as a revocation of the will of March 2d, 1847, or that it should be admitted to probate as a new will, which would have the like effect, under and by virtue of the statute of Massachusetts of 1843, c. 92, by the first section of which it is provided, that “ Any will of an inhabitant of this state, made in any other of the United States, or in any foreign country, and which might be proved and allowed according to the laws of such state or country, may be proved and recorded in this state, and may be proceeded in, and have the. same effect, as if it had been executed conformably to the provisions of the Rev. Sts. c. 62, § 6.”
    The subscribing witnesses to the paper executed at Wes* Troy being called as witnesses, Joseph Bates testified as follows : —
    “ I knew Richard W. Bayley. He married my sister. He died the last of July, 1848. He had been failing for a year or two. He was in a consumption. He came to my house in Troy, New York, in July, 1848, from whence he went to Sara-toga for his health. He returned to my house on Saturday, July 29th. His health was then evidently failing. In the evening he and I talked together for an hour about his will. He told me that he had made a will, but that it had been his intention for some time to destroy it and make another; that he should have done so on his return from Vermont, but his friends advised him to travel. He said if he did not feel any better on Monday, he should write to his son-in-law to destroy his will. I asked him if he had not rather have his old will stand, if he could not make another. He said he had rather have his will destroyed and his estate settled according to the law of Massachusetts. He said he had given money to different societies by his will; but he and his wife had talked the matter over, and thought they had poor relations who needed the money more. He said he had conversed with Iiis wife, and that she knew what his wishes were, and would carry them into effect.
    
      “ He was not so well on Sunday. On Sunday night he said he felt unwell. He sent for a doctor on Sunday evening who gave him some medicine. On Sunday night he raised a good deal of blood. On Monday morning I saw he was failing. The physician came. Mr. Bayley said, ‘ I am failing.’ The doctor said he did not want to do any thing without counsel. He then went for another doctor. While the physician was absent, Mr. Bayley said to me, 1 Joseph, I shall probably never see home, and I want you to write a line to my son-in-law, according to the conversation I had with you on Saturday evening.’ I accordingly wrote the paper before the court, and laid it on a book before him. He sat up in bed to sign it. I then looked over his shoulder and read it aloud to him, in the presence of my wife and Mrs. Bayley, and asked him if that would answer. He said he thought it would do. He did not say any thing else before he requested us to witness the paper. He then signed the paper, and asked me and my wife to witness it. We both signed it in his presence. He appeared to be perfectly rational. When the two doctors returned, they said his case was doubtful; they had but little hope. He died one or two hours after signing the paper. 1 think he had very little hope of recovering when he signed it The bleeding continued on Monday morning.”
    On cross-examination the witness said, “ I do not know that when the paper was written, or when it was signed, he called it his wish or will. Nothing was said about the formalities of a will, or the necessity of the witnesses’ residences being added, &c. Mrs. Bates was not present at the conversation on Saturday evening. I was alarmed when I wrote the paper. I directed the paper on the outside as a letter to J. C. Bailey, and Mrs. Bayley carried it to Boston after Mr. Bayley’s death. He held the pen when he wrote his name. He gave no direction about the paper after signing it.”
    The other witness, Mrs. Bates, wife of the preceding witness, testified substantially to the same facts, with the exception of the conversation, which took place on the Saturday evening previous to the testator’s death, between him and the other witness, at which she was not present. In regard to the execution of the paper in question, her testimony was as follows : —
    “ Mr. Bates read the paper before the court to him in my presence. On hearing it he said it would do, or would answer. At that time he did not say any thing except ‘ That will do, I wish you and your husband to witness it.’ He signed it in the presence of me and my husband, and we both witnessed it in his presence.”
    The law of New York, relating to the execution and attestation of last wills, as found in the Revised Statutes of that state, Part 2, c. 6, §§ 40, 41, 42, is as follows: —
    “ $ 40. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
    1. It shall be subscribed by the testator at the end of the will;
    2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses;
    3. The testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament;
    4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.
    § 41. The witnesses to any will shall write opposite to their names them respective places of residence ; and every person who shall sign the testator’s name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid be excused or incapacitated on that account from testifying respecting the execution of the will.
    $ 42. No will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.’’
    The presiding judge reported that he considered it esta-, blished by the evidence, or admitted, that the will of March 2d, 1847, and the codicil of February 28th, 1848, were duly executed by the testator; that the paper of July 31st, 1848, was also duly executed, as it purported to be; that on all these occasions the testator was of sound mind; and that there was no reason to doubt, that the facts testified to by the subscribing ' witnesses to the last-mentioned instrument were truly stated ; but whether, under the circumstances, that paper could be admitted to probate, as a will, or could operate, without probate, as a revocation of the prior will, were questions reserved for the whole court.
    The cases were argued in writing.
    
      S. E. Sewall, for the appellants.
    1. The instrument executed at West Troy was a will within St. 1843, c. 92, § 1, which is a remedial statute, and is therefore to be construed liberally; and the reason of the statute applies to this instrument. What is a will? Swinburne, Wills, 4, adopts the definition of the Roman law: “ Testamentum est voluntatis nostra justa sententia de eo, quad quis post mortem suam fieri voluit,” Dig. 28, 1, 1; which may be translated: “ A testament is a declaration, in legal form, of a person’s will, in regard to that which he wishes to have done after his death.” And see Jarm. Wills, 11.
    The words, “it is my wish,” imply something which the testator knew he could not do or command to be done during his life, but which must be done by another after his death ; and the additional words, “ that my estate be settled according to law,” express his intention how his property should be disposed of.
    A will need not contain any disposition of property, although most wills do so, in order to make it a perfect will. See Rev. Sts. c. 78, § 3; c. 79, § 6; 5 Touillier, Droit Civ. Fr. 319, 320. That the instrument was in the form of a letter, is no objection to its being allowed as a will; the form is unimportant. 1 Wms. Ex. 1, 56; 1 Jarm. Wills, 12; Gladstone v. Tempest, 2 Curt. Ec. 652.
    The circumstances attending the execution of this paper show, that the testator intended it to go into operation after his death. He was very sick, so sick that the physician in attendance thought proper to call in another; he had said, “ .1 shall probably never see home; ” and he spoke of his inability to make a new will before death. Parol evidence of eircum-
    
      stances, attending the execution of an instrument, is admissible to show that it was intended as a will. 1 Jarm. Wills, 19, 30, 31; Wareham v. Sellers, 9 Gill & J. 98.
    3. This instrument was duly executed as a will according to the law of New York. It was subscribed by the testator at the end, and in the presence of two witnesses, who attested it at his request; and his words, after the instrument had been read to him, “ that will do,” were a sufficient declaration that the paper was his last will. The object of the declaration, required by the statute, must be, that the testator should not be imposed upon, as by being made to sign a will, when he supposes he is signing a deed. This provision is not construed strictly in New York. See Brinckerhoof v. Remsen, 8 Paige, 488, 498; S. C. 26 Wend. 324, 333.
    This paper is not merely a revocation of an old will, but is of itself a will. Even if it did nothing but revoke the former will, (which is not the fact,) it would still be a will. There may be a revoking will or codicil, as well as. a disposing will or codicil. 1 Jarm. Wills, 153, 154. This paper has the essential quality of a will; however strong the words of revocation may be, the testator may, at any time before his death, destroy the revocation, and set up the original will. See Taylor v. D’Eyville, 3 Hagg. Ec. 202; 4 Kent, 517, n.; Harwood v. Goodright, Cowp. 87, 92; 1 Jarm. Wills, 122, 123. Where a will, solemnly revoking a former one, was afterwards cancelled, the first will was held to be revived without a republication. Glazier v. Glazier, Lofft, 575; S. C. 4 Bur. 2512. The object of the provision of the English statute of frauds, followed here in St. 1783, c. 22, and reenacted in Rev. Sts. c. 62, § 9, was not to create, but to obliterate, .a distinction between a revocation and a will. 1 Jarm. Wills, 153.
    3. If, however, this is not a will, but merely a revocation, it was duly executed as a revocation, under the law of New York; and being so executed is a good revocation everywhere, notwithstanding the testator’s domicil was in Massachusetts. Even if the New York statute required a declaration that the instrument is a revocation of his will, that has clearly been complied with. The paper appears, on its face, to be a revocation ; the testator must have intended it, and the witnesses must have understood it, as such. It is not disputed, that a will, executed with the formalities required by the law of the testator’s domicil, is good, although executed in a country, the laws of which require different forms; and St. 1843, c. 92, settles the question, that a will executed according to the law of the place where it is made is good here. But it is contended, for the appellant, that a revocation of a will, (when not by will,) is effectual everywhere, when executed in the man ner required by the law of the place where it is made. A will of personalty, made abroad in the form there required, would be good here, by the general principles of jurisprudence independent of the statute of 1843; and that statute having expressly adopted this principle in regard to wills, this is an additional reason why the court should sanction it as applied to revocations. See 2 Huber, Lib. 1, tit. 3, §§ 3, 4, 15; Story Conf. §§ 443, 444; 4 Burge, Comm. 586, 590; 2 Voet, ad Pand. Lib. 28, tit. 1, § 27; Merlin, Rep. de Jur. Testament, sect. 2, § 3, arts. 8, 9; French Civil Code, art. 999; 1 Grenier, Donations, etc. 666. It may be, that a will of real estate, executed abroad, would not be good here without the statute of 1843; but we are now considering this instrument as a revocation ; and considered as a revocation, it does not convey real estate, but leaves that tó the law. Certain legal forms are required for conveyances of land, including devises, to render the evidence of title clear; but no such reason applies to the stopping, preventing, or intercepting of a conveyance ; and accordingly, until a conveyance is consummated, it may be stopped or recalled, even by word of mouth. A deed, given to a servant to be delivered to the grantee, may be recalled at any time before it is delivered. So, although devises were required to be in writing by the statute of Henry 8, yet a revocation by paroi was good, before the statute of frauds, 29 Charles 2. 1 Rol. Ab. 615; 1 Jarm. Wills, 153.
    
      G. Bemis, for the appellee.
    1. The instrument offered for probate is not a will under the laws of New York, for want of publication as such. The evidence shows, that the testator, at the time of executing it, said nothing about its being his will, or about his intending to publish and declare it to be his will, before the witnesses. On the contrary, he called it “ a line,” or letter. And if any thing was said on the Saturday night previous, Mrs. Bales did not hear it, for she was not then present.
    If such declaration was made, it was made before signing. The words of the New York statute are : “ The testator shall declare the instrument so subscribed,” See. In Hyer v. Burger, 1 Hoff. Ch. R. 1, vice-chancellor Hoffman said, that according to this provision, the declaration must follow the subscription. See, also, analogous cases on the construction of the statute of 1 Vict. c. 26, In re Byrd, 3 Curt. Ec. 117; In re Olding, 2 Curt. Ec. 865; In re Allen, 2 Curt. Ec. 331; In re Simmonds, 3 Curt. Ec. 79; Moore v. King, 3 Curt. Ec. 243; Casement v. Fulton, 5 Moore, P. C. 130. In Doe v. Roe, 2 Barb. 200, decided since the change in the constitution of the courts in New York, which overrules Hyer v. Burger, on this point, the English cases were not cited or considered.
    The publication was not sufficient, in point of form, to satisfy the New York statute. Hyer v. Burger, above cited, which seems, on this point, to be approved in Doe v. Roe, 2 Barb. 200; Brinckerhoof v. Remsen, 8 Paige, 488, 498; S. C. 26 Wend. 325, 332; Grant v. Grant, 1 Sandf. Ch. 235; Chaffee v. Bapt. Miss. Conv. 10 Paige, 85; Rutherford v. Rutherford, 1 Den. 33; Butler v. Benson, 1 Barb. 526; Seguine v. Seguine, 2 Barb. 385; 4 Kent, 515, n. (a). See, also, Swett v. Boardman, 1 Mass. 258; Gerrish v. Nason, 9 Shep. 438; Hogan v. Grosvenor, 10 Met. 54; Compton v. Milton, 7 Halst. 70; Den v. Matlack, 2 Harrison, 86; Combs v. Jollay, 2 Green’s Ch. 625. The English cases on the execution of a power by a will, to be “ signed, sealed, and published,” are analogous. Allen v. Bradshaw, 1 Curt. Ec. 110; George v. Reilly, 2 Curt. Ec. 1; Warlters v. Metford, 2 Curt. Ec. 221; Moodie v. Reid, 7 Taunt. 355; Stanhope v. Keir, 2 Sim. & Stu. 37; Barnes v. Vincent, 3 Notes Ec. & Mar. Ca. 628. In Burdett v. Spilsbury, 10 Cl. & Fin. 340, the judges were divided in opinion. The answer of the testator to the witness who wrote the paper, “ that it would do,” was said to him only in his character of draftsman, and was merely a recognition by the testator, that the writing agreed with the previous conversation on the subject. See Hyer v. Burger, and Brinckerhoof v. Remsen, above cited. Asking the witnesses to attest is not equivalent to a publication. See the cases just cited. Even reading the instrument to the witnesses for some solemn purpose, (which is not shown here,) would not be a publication. Is reading a deed to the witnesses, and requesting them to attest it, an acknowledgment, such as will entitle it to be recorded ? The instrument must be declared to be a will. So, if it is relied on as a revocation, it must have been declared to be a revocation. A reading of the instrument to the witnesses might be sufficient, if it contained the word “ will,” or “ revocation.” Now the New York law, like ours, does not author ize a destruction of the will out of the testator’s presence; so that the only way in which a writing of revocation, addressed to a person with whom the will has been left, at a distance from the testator, can take effect, is as a revocation in prcesenti; and its communication to the other person is a mere notice of the fact of such revocation. See Brown v. Thorndike, 15 Pick. 388, 408. The witnesses could not have understood, from the paper itself, that the testator meant it as an immediate revocation of the will; but they must have understood, that it was meant to be a letter to authorize Bailey, when he should receive it, to destroy the will; and the reasons, for requiring strict formalities of execution, apply with at least equal force to revocations made abroad, as to wills.
    Full knowledge, on the part of the testator, of the contents of his will, is no substitute for the positive requirements of the statute as to publication. In re Olding, 2 Curt. Ec. 865; Hudson v. Parker, 3 Notes Ec. & Mar. Ca. 236; In re Trinden, 3 Notes, 275.
    2. This is not a will, because it did not anticipate the death of the testator, as the event upon which alone it should take effect. Neither the instrument on its face, nor the facts reported, show that the testator did not expect the letter to reach the party to whom it was addressed, before his own death. It was no more than a letter of instructions, as if he had said, “ I wish lo have my will destroyed, though the effect of so doing, as 1 know, will be the settlement of my estate according to the roles of distribution of intestate property.” If it is doubtful, whether or not this was intended as a will, the burden of proving its testamentary character is on the appellants. 1 Wms. Ex. 87. The words, “ I wish my estate settled according to law,” will not be taken of themselves to constitute a complete will; for it is only giving the estate to the same persons to whom the law would give it, and can therefore have no legal effect. Parsons v. Winslow, 6 Mass. 169, 178; Ellis v. Smith, 1 Ves. Jr. 19, Hovenden’s note.
    3. This is not a will within the statute of 1843. Even if it could be held under the New York law to be a writing of revocation of a testamentary character; a revocation is not within that statute. The principle of comity, contended for by the appellants, would go to uphold foreign laws at the expense of our own, and is a principle which there is great danger of carrying too far. See Croker v. Hertford, 4 Moore, P. C. 339, 360. Our statutes have always maintained the distinction between wills and revocations, recognized by the statute of frauds. St. 4 W. & M. c. 9, (An. Char. 233); St. 1783, c. 24, § 2; Rev. Sts. c. 62, § 9. The Revised Statutes of New York, as well as the earlier laws of that state, recognize the same distinction. See also Lovelass on Wills, 343, and cases cited; Laughton v Atkins, 1 Pick. 535; Brown v. Thorndike, 15 Pick. 388, 404.
    The statute of 1843 should not be extended to revocations. Wills are everywhere guarded by certain formalities ; but revocations, though strictly guarded by statute in Massachusetts, are not so in some other states, following, in this respect, the English statute of frauds; which is a sufficient reason for not extending St. 1843 to revocations.
    Why should a statute which only mentions wills be extended to revocations, any more than the registration act mentioning deeds to powers of attorney authorizing the execution of deeds ? See Valentine v. Piper, 22 Pick. 85; or than the statute giving relief in equity upon mortgages, to equitable as well as legal mortgages ? See Kelleran v. Brown, 4 Mass. 443; Eaton v. Green, 22 Pick. 526. And in criminal law, where statutes in favor of liberty are construed with the greatest liberality, the statutes of criminal limitation are held to apply to original offences only, and not to repeated or additional offences. Commonwealth v. Hopkins, unreported, S. J. C. Suffolk, March term, 1841. The formalities required in the execution of wills are a mere arbitrary matter, and to enlarge or restrain the law regulating them, by judicial construction, would produce injustice and confusion.
    This instrument is to operate upon real estate, which is regulated by the lex loci situs. And as to the disposition of personal property, the law of the domicil of the testator governs; and a will or instrument of revocation executed in another state, according to the laws thereof, but not according to the laws of the testator’s domicil,is invalid. Croker v. Hertford, 4 Moore, P. C. 339, 360; S. C. 3 Curt. Ec. 468; Grattan v. Appleton, 3 Story, R. 755; Story, Conf. §§ 467 to 472. To permit this to operate as a revocation would be an infringement and violation of our statute (Rev. Sts. c. 62, § 9); and what equity is there, in allowing a citizen of Massachusetts to do that on the other side of the state line, which he could not do within the commonwealth ?
    
      Sewall, in reply.
    As to the time of making the declaration, “ at the time,” in the New York statute obviously means during the same interview between the testator and the witnesses, at which the will is executed; and the object of the expression, “ the instrument so subscribed,” is only to identify the instrument, but not to regulate the time of the declaration. The remarks of vice-chancellor Hoffman, in Hyer v. Burger, as to the time and form of declaration, are mere obiter dicta, and are deliberately overruled by the subsequent case of Doe v. Roe, in the supreme court of New York, which is very like the present. This case establishes the law of New York on this point, and renders an examination of the English cases unnecessary. The cases of Doe v. Roe, and Seguine v. Seguine, afford illustrations of the liberal construction put on this statute by the New York courts, as do the cases of Compton v. Milton, and Doe v. Matlack, of the corresponding law of New Jersey. In the cases of Brinckerhoof v 
      Remsen, and Combs v. Jolly, the expression used by the testator was, “ This is my hand and seal for the purposes therein mentioned,” which was rightly held to be an insufficient declaration, for no act of the testator manifested to the witnesses that he knew the instrument was a will. So in the case of Rutherford v. Roe, where one witness told the other, that the instrument was the testator’s “will or his agreement.” In the case before the court, if there could be any doubt, that the testator’s words, “ that will do,” showed that he intended to make the paper known as his will, the doubt is removed by his immediately requesting the witnesses to attest it. A reading of the will to the witnesses, accompanied by a request to them to sign, is a sufficient publication. The case of the acknowledgment of a deed is not analogous ; the acknowledgment is no part of the deed, but only a form, which, duly certified, entitles the deed to be recorded. And if, after the grantor had signed a deed, the magistrate should ask, “ shall I certify ? ” and the grantor should reply “ yes,” that would be a sufficient acknowledgment.
    The English cases respecting the execution of powers, cited by the appellee, put a very narrow and injudicious construction on the words, and are strongly condemned by Sugden, a very great authority, in his treatise on Powers, 306 et seq. They occasioned so much alarm in England, that an act of parliament was passed remedying the difficulty in part, and they are to a great extent overruled in the case of Burdett v. Spilsbury, 10 Cl. & Fin. 340, in which the opinion of eight judges against four was adopted and confirmed by the house of lords. [And see Ladd v. Ladd, 8 How. 10.] This paper on its face shows its testamentary character; it was not an order to J. C. Bailey to destroy the will; and there is no evidence that the testator intended it to be sent during his life.
    There is no doubt, that a will of real estate must be executed according to the law of the place where the property is situated. A will of personalty, executed according to the law of the testator’s domicil, is good everywhere; and the law of England, as declared in the case of Croker v. Hertford, concludes, therefore, that such a will executed according to the law of the place of maki lg is not good; but tb< laws of France and of continental Europe, generally, are otherwise; holding that a will of personalty executed according to the law either of the testator’s domicil, or of the place of making, is good; and the question being an open one in this country, for in Grattan v. Appleton, above cited, it was unnecessary to the decision of the case, there is no reason why the more liberal rule should not be adopted here.
    
      
       It is assumed by the court, and in the argument, that the appellee, to whom this paper was addressed, had the custody of the testator’s will in Boston; but though this was doubtless the case, the fact is not stated in the report of the judge
    
   Shaw, C. J.

These are two appeals from the probate court of this county, substantially presenting the same question. Richard W. Bayley, of Boston, executed his will at Boston, bearing date the 2d of March, 1847, with a codicil dated and executed at Boston on the 28th of February, 1848. The next autumn, the testator being infirm, and in feeble health, left Boston to visit his friends at West Troy, in the state of New York, and to go to Saratoga springs. On his return from Saratoga springs, he went to the house of his relatives in West Troy, with health much impaired; and, believing himself to be near the close of life, he executed a paper, which is the principal subject of discussion in the present case. He was in the full possession of his mental faculties, when he executed this paper, and died about two hours after its execution. The paper, which was subscribed by the testator, in the presence of two subscribing witnesses, is in these words: — “West Troy, July 31, 1848. Mr. Joseph C. Bailey: It is my wish that the will that I made be destroyed, and my estate settled according to law.” This paper was presented to the judge of probate, for proof and allowance, both as a revocation of the former will and codicil, and also as a last will and testament. The probate court allowed the will and codicil, executed at Boston, and admitted the same to probate, and by another decree declined admitting to probate the paper executed at West Troy. Appeals were taken from both these decrees, for the same reason, substantially, namely, that the will and codicil ought not to have been allowed, because they had been revoked; and that the paper executed at West Troy ought to have been allowed; so that in either case the estate of said Bayley would be settled as an intestate estate.

The instrument executed at West Troy would have no effect to revoke the prior will and codicil, were it not within the provisions of St. 1843, c. 92; but it is insisted, on behalf of the appellants, that by the force and operation of that statute, this paper, executed, as it purports to be, in the presence of two witnesses, and attested by them, under the circumstances stated in the report, operated as a revocation of the prior will and codicil. The act provides, that any will of an inhabitant of this state, made in any other of the United States, or in any foreign country, and which might be proved and allowed according to the laws of such state or country, may be proved and recorded in this state, and may be proceeded in, and have the same effect, as if it had been executed conformably to the provisions of the Rev. Sts. c. 62, § 6.

By the Rev. Sts. c. 2, § 6, cl. 18, it is declared, that in the construction of all statutes, the term “ will ” shall be construed to include codicils. The statute of 1843, c. 92, therefore, will extend to a codicil, an instrument made after an original will, and to be regarded as if annexed to it, to be construed with and make a part of it.

The question then is, whether this paper, attested by two witnesses only, would be good and entitled to be proved as a will or codicil by the laws of New York. [Here the judge stated the substance of the law of New York, relating to the execution of wills, as given at length, ante, 249.] In looking at the evidence in the present case, it appears to us, that the instrument in question was executed in the manner, and with the formalities prescribed by law, to admit it to probate, as a testamentary instrument and codicil of the testator, in the state of New York.

It was subscribed by the testator, in the presence of the two attesting witnesses. The testator, in effect, declared it to be in conformity with his wish or desire. The instrument is very short, and very intelligible, consisting of but two lines, first, declaring his wish that his will should be destroyed; and, second, that his estate should be settled according to law. It was distinctly read aloud to him, at the time of the signing, by one of the witnesses, in the presence of the other and ol the testator’s wife ; and the testator, being then asked if that would answer, said it would. The statute does not require any particular form of declaration; an assent to a question put by another is the declaration of the party assenting, if he clearly and distinctly comprehends the meaning of the question. Here the question was so short, and the idea expressed in it so clear and distinct, that in the full possession of his senses, as he was proved to be, he could not mistake it. It was therefore his declaration that it would do, or would answer; that is, that it would avail for the purpose he desired. The paper was subscribed in the presence of two witnesses, who attested it at his request.

The testator did not, indeed, in pursuance of the third clause of the fortieth section of the New York statute, declare it to be his last will and testament. Strictly speaking, it was not a last will and testament; because it did not devise or bequeathe property, or republish a former will, or nominate an executor, it was rather within the provisions of the forty-second section, a writing of the testator declaring a revocation of his former will in writing, and executed with the same formalities, with which a will was required by law to be executed.

The declaration, therefore, that this paper would answer, or would do, was a declaration that it would answer to accomplish the purpose and wish he had in view, as expressed in it, which was to annul his will, and leave his estate to be settled according to law. This was all the declaration which the truth of the case would admit, when executing a writing declaring such revocation according to the provisions of the forty-second section. In all other respects, the will was executed with the formalities required in the execution of a will. The requirement in the forty-first section, that the witnesses shall annex to their signatures the places of their residence, is merely directory; and the want of compliance with it does not affect the validity of the instrument.

The circumstance, that this paper was addressed to Joseph C, Bailey, who, it was understood, had the custody of the will at Boston, we think can make no difference ; the fact that the testator regarded it as something more than a letter or order, is manifest from his requesting the witnesses to attest it. A good will, or testamentary paper, may be made in the form of a letter, if in other respects it bears the character, and is executed according to the requisites of a will.

We are therefore to look rather at the terms of the instrument, and the circumstances under which it was made, than to the mere external form, to ascertain whether it was a testamentary paper. Upon this point, it was urged, that this paper was rather an order or an authority to the keeper of his will, to destroy it, by cancellation or otherwise; and as this was never executed, and by no possibility could be executed, in his lifetime, it was unavailing. If the first clause in the writing stood alone, “ it is my wish, that the will I made be destroyed,” there would be some force in this argument; but the other clause we think is more decisive, “ that my estate be settled according to law,” that is, “ it is my wish that my estate be settled according to law.” It was a present declaration,— “it is my wish now;” and it was made by one, whose declaration of purpose, in the form required by law, was conclusive. It looked to the event of his death, to take its effect, and to have its operation ; no further act was required to give it the effect of a present revocation ; it was of itself a definitive act.

The conclusion to which the court have come is, that the term “ will ” in St. 1843, c. 92, includes every species of testamentary act, which takes its effect from the mind of the testator, requiring a sound and disposing mind and capacity, and manifested by the proper execution of an instrument in writing, and thus includes any testamentary writing which operates by way of revocation, and not by way of cancellation ; that the paper in question was intended to operate, as far as the testator had capacity to do it, as a testamentary declaration of a present wish, will, and purpose to annul his will, and a like present wish and purpose, that his estate should be settled after his decease, as an intestate estate; that it was not intended as a mere authority to the person, to whom it was addressed, to cancel or destroy his will physically, but also to declare his present will; that such a declaration duly made, signed, and attested, according to the laws of this commonwealth, will have effect in this state, as a will, codicil, or revocation, or, in the woius of the Rev. Sts. c. 62, § 9, as a writing signed, attested, and published in the manner provided for the making of a will; that being made in New York, in the manner and with the formalities required by the laws of that state for making a will, by force of the statute of 1843, c. 92, it has the same effect here ; and, therefore, that it must operate as a revocation of the will and codicil, and leave the estate to be settled as intestate conformably to the laws of this commonwealth.  