
    In the Matter of the Estate of Luania Cardot Ackels, Deceased.
    
      (Surrogate’s Court, Chautauqua County,
    
    
      Filed April, 1898.)
    ¡1. RevocaitoN — Wra Nor be Implied fbom Fact that Will is Cot in Two.
    The mere fact that the will, when found, was cut in two parts will not, in the absence of proof that the cutting was done by testatrix, or by the draughtsman in her presence and .that of two witnesses, authorize a presumption of revocation.
    E. Pbobate — Subsequent Disposition of Property Will Not Prevent.
    The disposition by testatrix after the making of the will of all her property will not prevent probate of the will.
    
      This is an application for the probate of an instrument purporting to be the last will and testament of Luania Cardot Aekels, deceased.
    The issue in the proceeding ds whether the will had been revoked by the testatrix before her death. The facts as we deem them established by the evidence, so far as material, are stated in the opinion.
    Hooker & Dikeman, for proponent; Ottoway & Munson, for contestant.
   Woodbury, S.

The' proponent presents two papers which together constitute, as she claims, the last will and testament of the deceased. The two papers make and constitute one full sheet of legal cap paper. At one time these papers were one complete instrument and when so complete was the last will and testament of the deceased, properly executed, and was the free and voluntary act of a competent testatrix. These papers have been marked respectively Exhibits “A” and “ B.” Exhibit ieA” is the disposing part of the will, and Exhibit B ” contains the signature of the testatrix, the seal, the attestation clause, and the signatures of the witnesses. Exhibit B ” was cut from Exhibit “ A.” We are thus to determine'whether the instrument which once constituted the will of this decedent has been canceled and revoked by the cutting off of the signature, attestation clause and signatures of the witnesses. This is the sole question in the case and must be determined from the evidence and circumstances adduced upon the hearing. This evidence is meagre and unsatisfactory and the disposition of the question must depend largely upon presumptions.

John C. Griswold, a resident of the town of Arkwright, in this county, was sent for by the testatrix to prepare and superintend the execution of her will. He went- to her residence pursuant to such request and prepared and superintended the execution of the instrument formed by the component parts,. Exhibits “A” and “ B.” Mr. Griswold was a man who fre■quently prepared wills and other papers for his neighbors and friends in the community of his residence and was in the habit ■of talcing charge of such instruments and papers for safe-lceep-ing. It does not appear what was done with the will in question after its execution; whether it was taken by Mr. Griswold for safe-keeping or -was retained by the testatrix. The first we ■learn of the whereabouts of the will, after its execution, is in. the possession' of Mr. Griswold about one year after the decease of the testatrix. It is then found a.t his residence, in a desk in which he kept papers and legal documents, by Cassius M. Gris-wold, his son, and when so found it had been cut in two, Exhibit “ B ” having been cnt off and severed from Exhibit “ A,” the remainder of the instrument. John C. Griswold died subsequent to this incident and the two parts of the will afterwards-passed into the possession of the son Cassius, and from his possession were traced to this court in a proper manner. Cassius M. Griswold testifies that, at the time he saw the will in his father’s desk during the lifetime of the latter, he -did not find Exhibit B ” with the other part of the will, but only found that part of the instrument marked Exhibit “ A,” which is the disposing part thereof. In view of the fact that, at a time subsequent to the death of John 0. Griswold and when the desk in which his papers were kept passed into the custody of Cassius, Exhibit B ” was found in the desk with the other part of the-will, we think we are not justified in finding or presuming that this part of the will had been taken away by the testatrix in her lifetime, with intent to revoke the will, and after her death had been surreptitiously returned, but that it must have been in said desk at the time Cassius saw the other part of it therein. He does not testify that he examined all of the papers in the desk at that time or that Exhibit B ” was not therein. All he says is that he did not see it a.t that time. There is slight circumstantial evidence in the case that the testatrix disposed of her property in ber lifetime, and a paper bas been produced in evidence wbicb purports to bo tbe requests of tbe testatrix witb respect to the disposition of ber property after ber decease, wbicb contains tbe following recital: “ Requests of Lnania Cardot Ackels for tbe division of ber property, having given it all to Marvin and Frank Cardot.” Tbis paper is in tbe band-writing of John C. Griswold and signed by tbe testatrix. It bears no date, is unattested and there is no direct evidence tending to show tbe time of its execution. Tbe first we learn, and tbe only evidence we have concerning it, is that' it was found by Cassius M. Griswold in bis father’s desk witb Exhibit “ A” at tbe same time that be found the latter instrument there one year after tbe death of tbe testatrix.

In view of tbe fact that tbe will, as originally executed, contained a detailed disposition of all tbe property of the testatrix, it may be fairly assumed that tbis instrument was executed after tbe execution of tbe will. This brings us to tbe consideration of legal principles governing tbe revocation of wills. Tbe statute (2 R. S., chap. 6, tit. 1, § 42) prescribes tbe manner in wbicb a will once duly executed may be revoked and precludes any other mode of effecting such revocation. It reads-as follows: “No will in writing except in tbe cases hereinafter mentioned, nor any paid thereof shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of tbe testator, declaring such revocation or alteration, and executed witb tbe same formalities witb which tbe will itself was required by law to be executed; or unless such will be burned, torn, canceled, obliterated or destroyed, with tbe intent and for the purpose of revoking tbe same, by tbe testator himself or by any other person in bis presence by bis direction and consent; and when so done by another person, tbe direction and consent of the testator and tbe fact of such injury or destruction shall be proved by at least two witnesses.”

It is conceded that tbe instrument, purporting to be tbe requests of tbe testatrix, does not' operate as a revocation of tbe will by reason of the fact that it was not “ executed with the same formalities with which the will itself was required by law to be executed.” But it is- claimed that it was revoked, first, because it was cut in two and canceled with the intent and for the purpose of revoking the same, and, second, that the testatrix, having disposed of all of her property in her lifetime, such act operated as an implied revocation of all wills previously executed. To effect the revocation of a will by cancellation, as in this case, two things must concur, namely, the actual cutting in two, and that such act be done with intent to' effect the revocation. The one thing, the act which is to be done, is prescribed by the statute referred to. It must be done by the testatrix herself or by some third person in her presence and in the presence of two witnesses by whom such act is to be proved. In our opinion we are not to presume that the act of cutting, in this case, was done by the testatrix herself. We think it cannot be presumed that, having the instrument in her possession, she would cut it in two with an intent to revoke and destroy it and thereafter take the separate parts and place them in the custody of Mr. Griswold. But, upon the contrary, from the circumstances in the case we are to presume that the will, at the time of its execution, was placed by the testatrix in the hands of Mr. Grisw'old for safe-keeping and that he had the custody and possession thereof during the whole period of time from its execution until it was seen by his son after the death of the testatrix. We, therefore, conclude that the physical act of cutting and destruction was not done by the testatrix. It may not be presumed upon the other hand that Mr. Griswold having the custody of this paper would cut it in two, or otherwise mutilate or destroy it except by the direction or request of the testatrix, and whatever presumption may arise that the •act of cutting was performed by Mr. Griswold must be coupled Avith the further presumption, that if he did it, it' was by the direction and the consent of the testatrix; and assuming such to have been the case, or that the cutting Avas done by some pei;-son other than Mr. Griswold by the direction and consent of the testatrix, such act would not operate as a revocation of the will, because no witnesses were present to prove or attest it. .

We are now brought to the final contention in the case that the will -was impliedly revoked by the disposition of all the property of the testatrix in her lifetime. We are not prepared to yield to this contention. First, because we are not satisfied from the evidence, and cannot find, as a fact, that the testatrix did dispose of all of her property after the making of the will, and prior to her death; and, secondly, because if she had done "so, in our opinion, that should not defeat the probate of tho will. Such act on her part may well operate to prevent the beneficiary from enjoying the fruits of beneficence as stated in the will, yet it does not follow of necessity that it would work a complete revocation of the will; and we think the will in such case should be admitted to probate, leaving its effect to be determined when the legatee or devisee prefers his claim. We reach the conclusion that there was no valid revocation of the will in question, and that the instruments Exhibit “A” and “ B should be admitted to probate as and for the last will and testament of the testatrix.

A decree will enter admitting such instrument to probate.

Decreed accordingly.  