
    In the Matter of Proving the Will of Robert H. Johnston, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Will—Probate—Revocation.
    Testator made his will, by which he gave a house, a money legacy and all his personal property to a niece, and the rest of liis property to others. He subsequently made another will, by which he gave all his property to • said niece. This was properly executed, except that he stated to one of the witnesses that it was an alteration, of his will. It contained no clause revoking any former will. Thereafter he destroyed the second will with the intention of revoking it and giving effect to the first one, which he still retained uncanceled, and so declared, but not in writing. Held, that there was no revocation of the first will, and that it should be admitted to probate as his last will and testament.
    Appeal from decree of the surrogate of Queens county denying probate to will'
    
      Josiah T. Marean and Benj. W. Downing, for app’lt; Horace H. Deming, for resp’t.
   Pratt, J.

The facts material to the decision of this case are not in dispute. Robert Johnston made a will dated November 10, 1884, which was duly published with all requisite formalities. He thereby devised the house in which he lived to his niece, Mary E. Theall, subject to certain charges, and bequeathed to her substantially all his personal property used in the house and about the grounds, together with a money legacy of $10,000. lie bequeathed $1,000 to his sister Mary, and $1,000 to eaclr of several other relatives, and gave, devised and bequeathed all the rest of his property to his brother William. Thereafter, and during 1885, the testator drew .up another paper which he signed. He requested two witnesses to sign the same as subscribing witnesses. This paper purported to be and was in the form appropriate to a new and independent will, by which he gave, devised and bequeathed all his property to his niece, Mary E. Theall, and appointed her sole executrix thereof. The witnesses signed the same as requested. All formalities for the "publication of this paper were observed except the testator’s declaration to both witnesses that it was his last will and testament. The findings in this particular are inconsistent. Those in the decision are to the effect that he declared this paper to be his last will and testament; but the findings on contestant’s request are that the testator did not declare tor one of the witnesses that the instrument was his last will and testament, but only declared that his purpose was to make a change in his will; and again, that he declared the instrument “ to be an alteration of his will.” The instrument contains no clause revoking any former will. Subsequently, the testator destroyed this second instrument, with the intention of revoking it, and with the intention of giving effect to the first instrument as his will, and that it “ should stand ” as his will; but that intention was never manifested by any writing. That paper was then in his possession uncancelled, and he then exhibited it to witnesses, and declared his intention that it should stand as his will, deposited it in his safe, and otherwise treated it as his only will. For aught that appears he died under this belief, and I think we must so hold on these findings and on this evidence.

No question of capacity arising, the learned surrogate has held that the second instrument was this man’s last and independent will, and that it revoked the first one because it altered the disposition of his estate. He has also held that its destruction, under the circumstances hereinafter stated, did not revive or reinstate the former will. The second paper was drawn by the testator himself and all that was done thereafter by him respecting both instruments was apparently without advice of counsel and without knowledge of the technical rules governing such matters.

The first- and perhaps vital question is this: Did this testator ever revoke the first will ? If yes, then to what extent? It has been answered that he did revoke it in toto simply because the provisions of the second instrument were partly inconsistent with ■ those of the first one. But that is not the turning point. Did he intend to revoke the first one in toto, when he published the second one? Did he publish that document with that purpose? It may be conceded that, if the case were to turn on the force of the paper alone, we should have a pretty close question to decide. But here stands the plain finding that he never declared it to be his last will at all to the witnesses, i e., to both of them. To one of them he declared it to be a mere alteration of his will, and not that it was his will or last will, or anything of that sort. It is, perhaps, fair upon these findings to say that he may have stated to the other witness that the instrument was his last will and testament; but on this finding, even if he did that, it was simply for the purpose of effecting an alteration in the first document. Here then we have a case upon these findings where a man simply intended to alter his will by giving all his property to one of his formerly chosen legatees, i. e.} to take nothing from her, but to take all from the others and give that thus taken to this one. But, through failure to understand the technical requirements of law, he fails to observe certain forms and thereby places himself in a false position ; and we are now asked to hold that this mistake in that regard shall frustrate his intention respecting his property.

For my part I cannot so hold. This is not the first time that we have declined to allow forms to frustrate substance. Under the circumstances I feel bound to hold that the second instrument cannot stand as an independent last will and testament, because it was not published as such. It was not declared to be a last will and testament to both subscribing witnesses and that is essential to give it force and effect as a last will and testament.

It, therefore, follows that whatever else may have been its effect, there was no revocation of the first will in its entirety either by implication or otherwise. What was then the force and effect of this second paper? It was designed and published as a mere alteration of the original will and nothing more. In that view it was at best a mere codicil to the original, and that involves the salvation, indeed the republication of the original in its entirety, but attests a coincident modification and revocation only of the inconsistent parts. But this case is peculiar in this: the will gave only a part of his property to Mary E. Theall. This second paper purported to give the whole of it to her. It is, therefore, especially plain that he never intended to take anything from her which was given by the original will. What he intended to do by the second paper was to confirm the whole of his original provision for her, and then increase that provision. It was in no sense a change in the original so far as she was concerned, but an addition to it, just as he might have done by a new legacy or devise. The publication of the second instrument was, therefore, not inconsistent with the first in this respect, and, hence, was not a revocation of the legacy to Mary E. Theall. On the contrary, it was a recognition and. reaffirmation of that original provision pro tanto so far as it had any force and effect at all upon Mary E. The-all. It did, by implication, revoke the provisions of the original will so far as it related to other legatees and devisees. It may be possible, though I shall hold otherwise, that they have lost the benefit of its provisions on the theory that the destruction of the second instrument, animo revocandi, was ineffectual to revive the clauses which were there apparently revoked by implication. But I do not think that even that result should follow, for the reason that the statute does not in terms apply to such a paper as this second instrument was ; and, besides that, I have serious doubt if the testator’s declaration to the witnesses to the second paper was sufficient to give it any force even as a codicil.

I shall, therefore, advise that the surrogate’s decree be reversed, and that the instrument dated November 10,1884, shall be admitted to probate in toto as testator’s last will and testament.

Order refusing probate reversed, and probate ordered, with costs to all parties out of the estate.

Barnard, P. J., and Dyicman, J., concur  