
    
      In re Voorhis’ Will.
    
      (Supreme Court, General Term, First. Department.
    
    November 7, 1889.)
    1. Wills—Competency—Evidence.
    The facts that testatrix, who by will left her property to charitable institutions, was of advanced age, nnable to read or write, of a capricious disposition, and that she had stated an intention of leaving everything to her relatives, it being shown that she was excitable, and easily took offense at her relatives, do not suffice to establish the incorapetency of testatrix, where it appears that she understood the contents of her will, and designed it to be her testamentary act.
    3. Same—Due Execution.
    In support of a will leaving all testatrix’s property to charitable institutions, to the exclusion of her nieces, who were her nearest relatives, it was proved by her attorney that the instrument in question was the one which he had drawn up as her will, at her request, and according to her instructions, and read to her; and the two subscribing witnesses testified that testatrix had signed the instrument in their presence, and that they had signed the same as witnesses, on being told it was decedent’s will, and requested to sign it, either by decedent herself or by her attorney, in her presence; and it was also proven that decedent had told an acquaintance that she had left her property to charitable institutions. Held, that the proper execution of the will was established.
    S. Same—Revocation.
    The fact that testatrix, who had made a will leaving everything to charitable institutions, before her death became dissatisfied with it, and had another will drawn up, leaving everything to her relatives, intending to execute it, but, before the time assigned for the execution became unconscious, and remained so until her death, is not a sufficient revocation of the first will, under 3 Rev. St. N. Y. (6th Ed.) p. 63, § 40, which provides that, to constitute a revocation of a previous will, there must be some other will in writing, or some other writing declaring the revocation, etc., or that the instrument has been burned, torn, canceled, etc.
    Appeal from surrogate’s court, New York county.
    Application by Harriet B. Evans to vacate and annul the probate of the will of Ann Voorhis, deceased. There was a decree denying the application and confirming the probate of the will, from which the said Harriet B. Evans appeals. For motion to dismiss appeal, see 5 H. Y. Supp. 948, mem.
    
    Argued before Van Brunt, P. J., and Barrett and Daniels, JJ.
    
      II. ST. Whitehead, for appellant. C. IS. Tracy and D. ST. Helm, for respondent.
   Daniels, J.

The will which is in controversy in this appeal was executed -on the 20th of December, 1879, and the testatrix died on the 30th of January, 1882. At the time of the execution of the will she was of the age of 79 years. She had no children, parents, brothers, or sisters. Her relatives were "nephews and nieces, and grand-nephews and grand-nieces. Her relations with most of them were friendly and agreeable. But when she came to dispose of her estate by the will, after disposing of a small part of it in the way of legacies. she devised and bequeathed all the rest, residue, and remainder to the American Bible Society and the American Home Missionary Society. The application for the revocation of the probate of the will was made by Harriet B. Evans, who is a niece of the testatrix; and it proceeded upon the allegations that the paper which had been admitted to probate as the will of the testatrix had not been signed by her; that she did not acknowledge it, and was not of sound mind and memory at the time of its date, or capable of making a will, and did not understand or intend the execution of this instrument as her will; and that the formalities required by the statute to be observed to authenticate it as a will had not been complied with. To sustain the application, evidence was given of statements, made at different times by the testatrix, that she did not intend or design to leave any part of her property to societies, but that it should be disposed of among, or for the benefit •of, her relatives; and from this evidence it is entirely reasonable to conclude that at the times when these statements were made she did entertain that design. But she was further shown to have been capricious and changeable in her disposition, and had obtained wills, drawn under her direction, which never were executed by her. She was sensitive and excitable, and easily took offense at trivial acts of her relatives, which she regarded or considered to be slights upon herself. She was an illiterate person; and further evidence in support of the application to revoke the probate of the will was given, to the effect that she was not able to read or write. But neither this-evidence, nor her capricious disposition or her advanced age, precluded her from making a valid will, if it appeared that she understood its contents, and designed it to be her testamentary act; and in support of this will very direct evidence to that effect was given upon the hearing. The instrument, m controversy was prepared as the will of the testatrix by Hamilton Wallis, who was sworn and examined as a witness in its support. He testified that, he received instructions from the testatrix, either at his office or at her house, and that he took down thoáe instructions as they were given to him by her;, that he then prepared a draft of the will, which he afterwards read to her, at her residence, several days befpre the execution of the instrument in controversy; that alterations were made in the draft during the time it was-read to the testatrix; and that the instrument admitted to probate was an exact copy of the draft, with the alterations suggested by lier. This evidence sustained the conclusion that the instrument was drawn in pursuance-of the authority and instructions of the testatrix, and that it conformed to-those instructions, and was understood by her in the dispositions it directed should be made of her estate. Before the time of its execution, she requested the two persons who subscribed as witnesses to the will to repair to her house, at a time designated for that object, to witness her will. They met at her residence at that time; and both testify that the instrument which was produced was signed by the testatrix, and by themselves as witnesses. The evidence of Mr. Hoe, one of the subscribing witnesses, is that Mr. Wallis asked. Mrs. Yoorhis if she wished these gentlemen to witness her will, and she said “Yes,” and then “she signed the will herself, in my presence.” “I saw her sign.” Mr. Wallis’ evidence as to the same fact, as it is contained in the printed case, is incomplete; but it is probable that it was intended to authenticate the fact as it was stated by Mr. Hoe. His testimony was that “Mrs. Yoorhis signed her name to it,—and the two gentlemen,—after I had asked her if she had signed and sealed this paper, and published and declared it aslier last will and testament; and requested these gentlemen to execute it as. witnesses, and they then signed it as witnesses.” The other subscribing witness, Joseph A. Sterling, was by no means so clear in his recollection as to-the request to the witnesses to sign the will as was Mr. Hoe. But he stated that the lawyer, or Mrs. Yoorhis, said it was a will.- And he thinks she gave-the paper to Mr. Hoe, and then he sat down and signed it at the table; and then this witness sat down in his place, and also signed it. He further stated that, it -was said to be Mrs. Yoorhis’- will. He thought the lawyer said so; and it was understood so, because 'he was asked to go there. The paper, he said, was given to him, and he was asked to sign it, as Mrs. Yoorhis’ will. The-statement was: “There is Mrs. Yoorhis’ will. Will you sign it?” Mrs. Yoorhis was present when that was signed, and his evidence is that it had already been sighed by her. From this evidence it is entirely natural to conclude that she understood the contents of the instrument, and designed it to-be her will, and also, in substance and effect, either by her own direct request or that of the attorney, in her presence, and acting in her aid and assistance, requested these two persons to subscribe it as-her will, and as subscribing witnesses. And that conformed to what was essential for this purpose, as-the statute had prescribed and directed it. Gilbert v. Knox, 52 N. Y. 125. After the instrument had in this manner been executed, the witness Haney B. Howard testifies that she had a conversation with Mrs. Yoorhis, who told her that she had willed most of her property to charitable institutions, and said that her nieces would not get as much as they expected. This was still further evidence in proof of the fact that Mrs. Yoorhis understood the substantial contents of the instrument, and that it had been drawn and executed in such-a manner as to carry her intention and design into effect; and it was not overcome by the testimony given on behalf of the contestant, and was not substantially inconsistent with that evidence. For, while it is entirely probable that her disposition generally was to distribute her property among her relatives, yet, at the time when this instrument was signed by her and these witnesses, she entertained a different purpose; and that was to dispose of the bulk of her estate for the benefit of these two societies. She may not have been aware of the extent of her property; although she probably was, as her money must have been put into the tin box, where it was found, by herself. But at this time she evidently intended to bestow it, whatever it was, upon these societies, after satisfying the legacies previously mentioned by her. That she complained of the insufficiency of her income, when she had a large sum of money in her immediate possession, will not invalidate her act. She was, without doubt, a penurious person,—not only frugal, but actually denied herself luxuries which she had the ability to obtain and enjoy. But these were not controlling circumstances in the case, as long as it appeared satisfactorily from the other evidence that she had' directed the instrument to be drawn as it was, and executed it, intending to make the disposition which it directed of the residue of her estate.

After this instrument was in this manner subscribed, and shortly before the time of her own decease, she became dissatisfied with it, and intended to execute another, distributing her property among her relatives. This appears from the evidence of the appellant, as well as of that of Mr. Ridley, who drew another instrument, to be executed by the decedent. That was still more complicated in its details than the instrument here in controversy; but the evidence warrants the belief that it conformed to her intentions, and was understood by her. But before the time assigned for its execution she became unconscious, and remained so to the period of her decease; and on that account this instrument was not executed, and did not go into effect as a will. What is proved to have transpired, although indicating a final intention on her part different from that contained in the instrument executed, did not work its revocation. Dissatisfaction on her part with the directions contained in it for the final disposition of her estate could not be attended with that result, as long as the instrument, at the time when it was made and published, truly expressed her design for the disposition of her property. To constitute a revocation because of dissatisfaction with a previous testamentary disposition, the law has required some other will in writing, or some other writing, declaring the revocation or alteration, executed with the same formalities with which the will itself is required by law to be executed, or that the instrument so executed has been burned, torn, canceled, obliterated, or destroyed, with the intention and effect of revoking it, by the person executing it, or by another person in his or her presence, acting by his or her direction and consent. 3 Rev. St. (6th Ed.) p. 63, § 40.

Various exceptions were taken on the part of the contestant to rulings made by the surrogate excluding evidence which was offered in the course of the hearing. But all the evidence which was strictly pertinent and relevant to the case seems to have been received. If that which was rejected had been also added on the hearing, no different result would have been reached in the case. As full and complete a statement of the inclinations, ability, disposition, and acquirements of the testatrix was received as could be of any service to the contestant. And, upon the consideration of all the evidence, the surrogate was clearly warranted in reaching the conclusion which he did, that the controverted instrument was in fact as well as in law the last will and testament of the decedent. There is no ground presented upon which this decision can be interfered with, but the decree should be affirmed, without including costs against the appellant, inasmuch as the final intention of the testatrix was to have madea different disposition of her property.

Barrett, J., concurs.

Van Brunt, P. J.

I do not think the court has any right to consider the evidence of Mr. Wallis as to instructions received by him, etc., as these were communications to which he had no right to testify. Without his evidence, there was ample proof to sustain the conclusions arrived at by Mr. Justice Daniels. Concur in the result.  