
    In re FORBES’ WILL.
    (Surrogate’s Court, Cortland County.
    July 31, 1893.)
    Wills—Revocation—Revival.
    Where a will is revoked by the execution of a second will, declaring that all former wills of testator are revoked, the first will is not revived by the fact that, after testator’s death, the second will cannot be found; It being provided by 3 Rev. St. (Birdseye’s Ed.) p. 3345, § 53, that the destruction, cancellation, or revocation of a second will shall not revive the first will, unless it appears by the terms of the revocation that it was the intention to revive the first will, or unless thereafter testator shall duly republish his first will.
    Petition of William A. Bean, executor of Charlea A. Forbes, deceased, for probate of decedent’s will.
    Denied.
    B. T. Wright, for proponent.
    Kellogg & Van Hoesen, for contestant.
    Henry A. Dickinson, special guardian.
   EGGLESTOK, S.

The alleged will of Charles A. Forbes, deceased, offered for probate in the surrogate’s court of Cortland county, bears date on the 1st day of September, 1883. Under this will, William A. Bean, the petitioner, was named as executor. The will appears to have been executed in compliance with the statutory requirements sufficient to admit the same to probate. Upon the return to the citation issued, Pauline B. Forbes, the widow of testator, and Annis R. Forbes and Mabel Forbes, daughters, by their special guardian, interposed objections to the probate of the will, upon the following grounds: First. Incompetency of testator to make a will. Second. The will offered for probate is not the last will and testament of Charles A. Forbes. Third. The same was procured to be made by fraud and undue influence. Fourth. That the writing offered for probate was duly revoked by the said Charles A. Forbes in his lifetime, in manner and form prescribed by the statutes of the state for the revocation of such instruments, and that the writing was revoked by the due execution and publication of a subsequent will, in manner and form prescribed by law, and by destroying the said alleged last will and testament in the manner and form prescribed by law, for the purpose and with the intent of revoking the same. Upon the hearing, the only ground urged against the probate of the will, based upon the objections filed, was that of the testator having made a will subsequent to the one which is offered for probate, and in and by which later will the will of September 1, 1883, was duly revoked.

The facts, as stated in the record of the case, present a strange state of circumstances, and should be carefully considered in order to arrive at a just conclusion as to whether the will offered for probate has been revoked, and whether it is the last will and testament of the deceased. Upon the question as to whether or not there was a subsequent will made revoking the will sought to be probated, Mrs. Sophia Bean, who resided in Homer, and was an aunt of the testator, testifies that, upon an occasion when she was in Cortland, the testator handed to her a will for safe-keeping, and upon that occasion he told her that had made two wills, one before this one; that this occurrence was after the death of the testator’s father, and, when the testator brought the will to-her, he came out of some office in Cortland, but whether or not it was the surrogate’s office she cannot tell. She also says that she never saw but the one will which he handed to her, and that she did not read the will, nor know what its contents were, though she had had some talk with him about one clause in the will, the one providing that the wife should be cut off as a legatee in case of her remarrying. She further testifies that the will was in an envelope at the time, and that she took it home with her, and kept it in a drawer. She thinks the time was in the fall of the year. That she kept the will for several years thereafter until it was sent for, when she sent it to Charles, at Cincinnatus, by mail. The witness further states that, before she sent the will to Charles, she gave it to William Bean, who took it to B. T. Wright, an attorney at law at Cortland, and, in pursuance of some instruction received from him, she took the will to Elliot Stone, a justice of the peace in the village of Homer, and procured Turn to make a copy of the will; that the copy which was made was compared by the witness and the wife of William Bean, and was a correct copy; and that she safely kept the copy until about the time .that the will of 1883 was offered for probate, when she took the copy and delivered it to, or procured it to be delivered to, Mr. Wright. The will was sent for by Charles, and the copy of the same made during a contest over the probate of the will of one Fred Forbes, a brother of Charles, in which contest William A. Bean, the petitioner herein, was executor and proponent, and Charles was contestant, Mr. Wright acting as one of the attorneys, for Bean. By the evidence of Mr. Stone, it appears that he copied the will for Mrs. Bean, and he states he copied it correctly, and that it is a correct copy of the original will and the whole of it; that it is his impression that the original will was in the handwriting of Judge Knox, though he does not distinctly remember. Mr. Benjamin, an attorney at law, residing at Cincinnatus, U. Y., and one of the attorneys for Charles in the contest of the will of his brother, testifies that he received from Mrs. Bean a will of Charles Forbes, and that it was sent in response to a request by letter that he had mailed to Mrs. Bean, and that he gave the will to Charles Forbes either upon the day that he received it or in a day or two. He further states that he is very sure that the will was in the handwriting of Judge Knox, and that the signature to the same was in the handwriting of Charles. To. Mr. Benjamin, Charles stated at the time of receiving the will that he would destroy it, since which time it does not appear that the will has been seen. There is some slight difference in the evidence of Mrs. Bean and Mr. Benjamin as to the sending and receiving of the will, but it is almost immaterial, and shows that one or the other of the persons is mistaken as to the exact facts of sending the will in question. That such will was drawn is further substantiated by the evidence of Judge Knox, who testifies that he drew the will of 1883. He states that he thinks that he drew a will subsequently to the one of 1883 for Mr. Forbes, and finds an entry upon his cash book under the date of October 1, 1884, as follows: “Received from Charles A. Forbes, for drawing will, etc., $2.00.” At that time Judge Knox was the surrogate of Cortland county. The two subscribing witnesses to the alleged will of 1884, Mr. Suggett and Mr. Stone, testified to the fact that they at about that time were witnesses to the execution of the will of Charles A. Forbes, and, while their recollection is somewhat indistinct as to the details of the matter, yet the evidence given by them is sufficient to make it definite and certain that a will was executed by the deceased at that time. It will be borne in mind that the will was drawn by Judge Knox, the then surrogate of the county, and was witnessed by Mr. Suggett, an attorney having a somewhat extensive knowledge of the drawing of wills, and well understanding what was necessary to be done in the proper execution of the same, and also witnessed by Mr. Stone, who was then clerk of the surrogate’s court, well acquainted with, the statutory requirements necessary to insure a valid execution of a will; in fact, all of said persons being well calculated to perform and have performed all of the statutory requirements necessary in the due and valid execution of a will. That such a will was executed is made quite clear by the evidence of Mr. Wright, who says that Mr. Bean brought to him the original will, and he, with Judge Duell, his associate counsel, examined it and advised the making of a copy of it before delivering it over to Charles. It is his impression that it was dated October 1,1884, was signed by Charles Forbes, also signed by John W. Suggett and F. E. Stone as subscribing witnesses, and was drawn upon a printed blank. Further than that, the copy of the will made by Mr. Stone produced bears date at the same time as of the drawing of the will by Judge Knox, as appears from the entry upon his cash book, and the names of the subscribing witnesses are the same persons as were witnesses to the will of 1884. So, from the evidence in this case, one can but reach the irresistible conclusion that the deceased did on the 1st day of October, 1884, duly make and execute his last will and testament, of which the copy offered in evidence is a. correct copy.

In the will of 1884, which is declared to be the last will and testament of Charles A. Forbes, deceased, is a clause revoking all former wills made by the deceased. The custody of the will of 1883, from the time of the making and execution of the same up to the time it was offered for probate, is not satisfactorily accounted for. By the testimony of Mr. Wright, the attorney for the executor, it appears in some way, which is not explained by the evidence, that the will came into his possession. When or how he received it, or by whom it was delivered to him, he does not know. In fact, he did not know that he had it in his possession until, casually looking over other papers, he found the proposed will in an envelope, marked, "Copy Chas. Forbes’ will, to keep;” and it was a matter of surprise to him that he should find an original will of Charles Forbes in his possession. He remembered the fact that the copy of a will was left with him, which is the copy that is produced in evidence as a copy of the will of 1884. The finding of the will offered for probate in the office of Mr. Wright is a strange circumstance, (I do not speak of this as a criticism in any way,) when viewed in the light of other facts appearing from the evidence in this case. A protracted contest was for several years carried on over the will of Fred Forbes, who was a brother of Charles Forbes. In that proceeding, Mr. Bean, who was named as executor in the will of Fred Forbes, proposed the will for probate, and objection to the probate was interposed by Charles Forbes. That contest has been carried on for several years, and is still in the courts upon appeal. In that contest 'Mr. Wright was the attorney for the executor and against Charles Forbes. During that controversy and upon the trial, it appearing that a will had been made by Charles in which he had named Mr. Bean as executor, he was told openly in court by his counsel that he had better procure that will and destroy it. It would be a strange fact, indeed, if, after all of the feeling of bitterness naturally engendered between parties in a protracted litigation, —and I think this was no exception,—Charles should desire to retain Mr. Bean as the executor of his will, and also knowingly permit the will to remain in the keeping and custody of the attorney who had been strenuously opposing him in the contest and hostile to his interests. Another fact which gives support to the revocation of the will of 1883, and possibly to the destruction of the will of 1884, if that question were in the case, is that, at the time the wills of 1883 and 1884 were made, Sarah A. Forbes was the wife of Charles Forbes, an,d at that time he had only one child, by the name of Annis Forbes. Subsequent to the making of the will of 1884, another child had been born, and, prior to the death of Charles, his wife had died, and he had again married, the name of his present wife being Pauline Forbes, who is one of the contestants in this proceeding. So that the situation of his affairs at the time of his death, especially in respect to the rights of those who were objects of his bounty, was quite different from what it was at the time when he made either of the wills in question. I am satisfied in this case that the deceased made and executed the will of 1884, and that later, when the same was sent for by Mr. Benjamin, it was so sent for at the request of Charles for the purpose of destroying the same. He had been advised by Ms counsel to destroy it, and stated to them that he would do so. Since the death of the deceased, the will of 1884 has not been found, though the evidence shows that a diligent search has been made to find the will.

Having reached the conclusion that the testator duly made, executed, and published his last will and testament on the 1st day of October, 1884, of which will the copy offered in evidence is a true and correct copy, the only remaining question to be determined is, does the will of 1884 revoke the will of 1883? It is distinctly stated in the will of 1884 that all former wills made by the testator are revoked. By statute it is provided as follows:

“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 to be executed.” 3 Rev. St. (Birdseye’s Ed.) p. 3343, § 42.

We have, then, proof of the execution of a will by the testator upon the 1st day of September, 1883, and also proof of the making and execution of a subsequent will upon the 1st day of October, 1884, wMch subsequent will was executed with the prescribed formalities as required by law, declaring in express terms in the instrument itself that all former wills are revoked by the testator. Hone of the exceptions referred to in the statute appear in this case. The fact that the subsequent will is not found after the death of the testator when proper search has been made for the same does not afford any ground or reason why the former will should be revived, or why it should be admitted to probate. Such a will, so revoked, is completely out of existence, has no life, and is dead to all purposes. It requires a resurrection by republication, executed with all of the solemnity and exactness required by law to first bring it into existence. Then, again, the will, not having been found after the death of the testator, in the light of the attending circumstances, leads me to believe that it was intentionally destroyed by the testator. It has been recently held that, where a will is not found after the death of a person, it is presumptive evidence sufficient to establish prima facie that the testator destroyed it “anima revocandi.” Collyer v. Collyer, 110 N. Y. 481, 18 N. E. Rep. 110; In re Marsh, 45 Hun, 107; In re Philp’s Will, (Sup.) 19 N. Y. Supp. 13. The will of 1884 not having been found after the death of the testator, fortified by the fact that the wife, one of the legatees under both wills, had died; that Mabel Forbes, a daughter, was bom after 1884, and was not a legatee under either will; that Pauline Forbes, the second wife, was in no way mentioned and provided for in the will, —and by the further fact that the person to whom was intrusted the management of Ms estate after his death was one who had been in controversy with bim for a period of years, raises a presumption sufficient to establish prima facie that the testator destroyed the will of 1884 purposely, and without any intention of reviving the will of 1883.

We have, then, these facts established from the evidence: The making and the execution of the will in 1883; the making and execution of a subsequent will in 1884, declaring in that will that all former wills made by the testator were revoked; and the fact, prima facie, that the testator destroyed the will made by him in 1884. “If, after the making of any will, the testator shall duly make and execute a second will, the destruction, canceling, or revocation of such second will shall not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to his first will, or unless, after such destruction, canceling, or revocation, he shall duly republish his first will.” 3 Rev. St. (Birdseye’s Ed.) p. 3345, § 53. The second will, by its terms, not only does not in any way affirm the first will, but by express words revokes the same. There is no proof showing that since the revocation the testator has in any way republished the will of 1883, and there are the best of reasons shown why he would not desire to revive that will.

It is urged by the counsel for the proponent that the will of 1884 has not been established, for the reason that it has not been shown that at the time of its execution the testator was of sound mind and memory, and competent to execute it. While the subscribing witnesses have not testified directly upon the question of the competency or incompetency of the testator on October 1, 1884, yet I think from the evidence in the case the conclusion can justly be drawn that the testator was at the time competent to make a will. It is quite evident that, at the time of the making of the will of 1884, the scrivener had before him the will of 1883, as the language used in each of the two instruments is quite similar. Again, it does appear by the witnesses that in September, 1883, the testator was competent to make a valid will, and there is nothing showing that there was any change in his condition of mind subsequent to that time up to October 1, 1884. The will of 1884 differs but slightly from the will of 1883. At the time Charles made the last will, he came to Cortland and had it drawn; went to the same person to have it drawn who had drawn the former will, and also who was one of the subscribing witnesses; requested Mr. Stone, who was a subscribing witness to the will of 1883, to be a witness to the second will. It appears that he had some conversation with his aunt about certain provisions contained in the will, and arranged for her taking and keeping the will in her possession. His death did not occur until the 15th day of September, 1892, eight years after the making of the will, and in the mean time he had been engaged as a party in a sturdy litigation in the courts. His first wife had died, .and he had married again. From March 15, 1884, up to September 17, 1884, he came into possession of a considerable property from his father’s estate, the same being paid to him by the administrators of the estate; and even the fact of his destroying the will of 1884, under the existing circxxmstances, I do not think argues against the mental capacity of the deceased husband and father. The proof, so far as it bears upon the question of testamentary capacity of the deceased, shows that he was of sound and disposing mind, competent to make a valid will at the time of making the last will, and would not justify or warrant the finding of mental incapacity at that time. It seems to me very clear that the will offered for probate was duly revoked by the testator, and that probate of the same must be denied. As these proceedings have been instituted in good faith by the executor, he is allowed his costs and necessary disbursements of the proceeding, the same to be taxed before the surrogate, and paid out of the estate; and a decree may be entered accordingly.  