
    Matter of Proving the Last Will and Testament of Jane Davis, Deceased.
    (Surrogate’s Court, Saratoga County,
    December, 1904.)
    Will defined — Probate where sole devisee, legatee and executrix has predeceased testatrix.
    Under our statutes there may be a valid will without the appointment of an executor and the term includes instruments which relate to real estate only.
    While a will which is shown to have been revoked should not be admitted to probate and testimony as to such revocation should be taken; yet a will should not be refused probate merely on the ground that the same is inoperative because the sole legatee, devisee and executrix predeceased the testatrix. The effect of such facts and the taking of proof thereof are matters that lie outside of a proceeding for probate.
    Certaik of the heirs-at-law and next of kin of the above-named decedent have propounded for probate, as her last will and testament, an instrument bearing date the 19th day of March, 1885, to which objections have been filed on the ground, among others, that the sole legatee and devisee and executrix named in the instrument predeceased the testatrix, so that the instrument propounded neither passes any property whatever, either real or personal, nor does it appoint an executor, and, therefore, is not entitled to probate. The counsel have united in requesting the surrogate to dispose of this objection before entering upon the consideration of other objections which will require the taking of testimony.
    Halstead H. Frost, Jr., for Samuel D. French, and others.
    Herbert J. Menzie, associated with William B. Lee, who is attorney for Emma Belle Davis, general guardian of the infants, Samuel Davis and Mara Belle Davis.
    William B. Lee, for Mary Gardiner Stone.
    William U. Cogswell, for Hiram Camp Davis and Sarah Louise Davis, proponents.
    John H. Burke and E. H. Peters, for Robert D. Chittenden, administrator of this estate in Fresno county, California, contestant. •
   Lester, S.

The instrument propounded in this proceeding as the last will and testament of the above-named decedent purports to give, devise and bequeath all her property, both real and personal, to her sister, Delia, and to appoint Delia the sole executrix thereof. It also contains” a clause revoking all former wills made by the testatrix. The probate of this paper is opposed on the ground that Delia died before the testatrix and that the devise and bequest to her lapsed; that letters testamentary cannot, for that reason, be issued to her and that the will is, therefore, inoperative for any purpose and is not such an instrument as is entitled to probate by this court.

The statute provides that a will of real and personal property, executed as prescribed by-the laws of this State, may be proved as prescribed in chapter 18 of title 3 of article 1 of the Code of Civil Procedure; that if it appears to the surrogate that the will was duly executed and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint, it must be admitted to probate, as a will valid to pass real property, or personal property, or both, as the surrogate determines and the petition and citation require.

The contestants object that the paper propounded is not a will, as the sole legatee and devisee is dead; and that, as she is also named as executrix, the so-called will neither disposes of any property, nor appoints any executor, and is, therefore, no will at all, but only the semblance and shadow of a will. And this leads us to the point of considering what is meant by a will in our statute relating to the probate of wills.

It is said by Redfield (Redf. Sur. [6th ed.], § 182) that the instrument propounded must be testamentary in its character and that the character of an instrument depends on its substance and not on its form.

Williams says (Williams Exrs. 6) : “A last will and testament is defined to be the just sentence of our will touching what we would have done after our death and in strictness, perhaps, the definition might be narrowed by adding respecting personal estate.’ ” Williams adds, at page I: “ ‘ The naming or appointment of an executor,’ says Swinburne is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a will is no proper testament, and hy the which only the will is made a testament.’ ”

A will is defined by Johnson, J., in Tompkins v. Tompkins, 1 Bailey, 96, to be a declaration of a man as to the manner in which he would have his estate disposed of after his death.

Jarman defines it as an instrument hy which a person makes a disposition of his property to take effect after his decease. 1 Jarm. Wills, 16.

At the present day and under the jurisprudence of our State there is no doubt that, as the word “ will ” is employed in our statutes, it is not limited to instruments which appoint an executor; for it is well settled that there may be a valid will without the appointment of an executor, and our statutes provide for the administration of the estate in a case where no executor is named in the will. It is equally clear that the word “ will” as used in our statutes includes instruments that relate to real estate only.

Accordingly, the most recent definition that I have found (29 Am. & Eng. Encyc. of Law, 124) defines a will as the legal declaration of a man’s intention which he wills to he performed after his death touching either the disposition of his property, the guardianship of his children, of the administration of his estate.

There can be no doubt that a paper which was not intended by the decedent to take effect upon his.death, should not be admitted to probate, though in the form of a will. On the other hand, a paper which is intended to be a will, if properly executed, may be proved as such, although it appear in the form of a deed or a letter.

So it has been held that a paper, though perfectly executed and attested, which was not made animo testandi but in jest, only to exhibit the brevity of expression of which a will was capable, was not the will of the testator. Nichols v. Nichols, 2 Phillim, 180. It has also been held that if two persons intending to make their wills each by mistake, execute the document prepared for the other, the instruments thus executed are not the wills of the parties executing them. Matter of Hunt, L. R. 3 P. & D. 250. And if the document was intended only as a contrivance to effect some collateral object, e. g., to be shown to another person to induce him to comply with the testator’s wish, it is not a will. Lister v. Smith, 3 Sw. & Tr. 282.

It is equally clear that a paper once duly executed as a will, but which has been expressly revoked by the testator, or which is presumed to have been revoked by the happening of those facts which the law declares shall raise a presumption of-revocation, Ought not to be admitted to probate. The question of revocation touches the testamentary intent and it is the duty of the surrogate to investigate the question of testamentary intent and to hear all legal proof that may be germane to that question.

And there is authority for the proposition that, if the paper upon its face should not purport to dispose of any property whatever and it named no executor and if the language of the instrument could not, under any state of facts, import an intention on the part of the person executing it to do either Other one thing or the other, it should not be admitted to probate. Probate has been refused, in other jurisdictions, in cases in which the instrument propounded made no disposition of property or made only such as was contrary to law and failed to name an executor. Matter of Wharton Estate, 3 Sw. & Tr. 422; Matter of Ralston Estate, 1 Chest. Rep. (Penn.) 482; Coffman v. Coffman, 85 Va. 459; Matter of Goods of Fraser, L. J. Prob. 20.

It is said in Rice on Probate Law and Practice (p. 100), that it is essential to a valid will, that there be “A person to take, capable of taking; for to render a devise or beqiiest valid, there must be a donee m esse, or in rerym natura, and one that shall have capacity to take the thing given when it is to vest, or the gift shall be void.”

And it was at one time the rule in this State that a will which devised the testator’s real estate to the United States was not entitled to probate, for the devisee was incapable of taking and the will was,- therefore, void. Matter of Will of Fox, 52 N. Y. 530.

The rule thus established seems a reasonable one and would relieve the probate courts of the State from the necessity of entertaining proceedings for the probate of instruments as wills that are void on- their face and from spreading such instruments at length upon their records. And it may be well urged that a doctrine which renders Surrogate’s Courts powerless to escape from such a vain task relegates them to a state of singular impotency.

But a different rule seems to have been established by the Court of Appeals in Matter of Will of Merriam, 136 N. Y. 58, which involved the precise question involved in the Fox case and in which it was held that the surrogate had not the power to determine the invalidity of a devise to the United States, and the consequent invalidity of the will, on the ground that the devisee had not the legal capacity to take; but that, if a will assumes to make a devise of realty, or is broad enough to include a transfer of such property, the surrogate must probate it as a will of real property, if the petitioner so requests.

And if it may not be determined by the surrogate that, by reason of .the incapacity of the devisee to take, the will could' never have had any effect, even at the moment of its execution, for an infirmity that appears upon its face and requires no proof to develop it and that- it is, therefore, no will at all, much less can the surrogate determine that a paper, which would have been effectual at the time of its execution and for a long time afterward to dispose of the entire estate of the testator, in case of her death, has, by reason of facts which, will have to he established by proof, ceased to be effective and, for that reason, has ceased to be entitled to probate.

Whatever rule may obtain, therefore, in other States or countries, or may have previously prevailed here, the present rule in this State must now be deemed to be that which is laid down in the Merriam case; and it is my opinion, therefore, to reach the conclusion that the paper offered neither disposes of property nor appoints an executor, - requires an investigation and the taking of proof that lies outside the scope of a proceeding for the probate of a will; that the present instrument, since it assumes to make a devise of realty or is broad enough to include a transfer of such property, the surrogate must admit to probate as a will of real property as the petitioner requests if it is established that it was executed by the decedent animo testandi at a time when she was competent to make a will; and that the present proceedings should be continued for the purpose of enabling the parties to litigate those' questions.

Decreed accordingly.  