
    In the Matter of the Probate of the Last Will and Testament of Herman S. Barnes, Deceased. Kittie M. Larzelere, Appellant; J. Franklin Barnes and Others, Respondents.
    
      Will—when revoked by proof of the subsequent execution of another will — the attorney superintending the execution of the subsequent-will may testify as to what was done —pi’esumption of destruction animo revocandi —proof required to overcome it.
    
    On an application for the admission' of a will to probate, it appeared that, subsequent to the execution of the will offered for probate, the testator executed another will, with all the statutory formalities, expressly revoking all former wills made by him; that the testator took possession of such subsequent will immediately after its execution, and that it could not be found after his death, although a careful search was- made therefor. It did not appear what became of the subsequent will after it was delivered to the testator, or that the latter . ever made any attempt to revive the former will. No proof was given as to the contents of the subsequent will, except that it in terms revoked all former wills.
    
      Held, that the former will was not entitled to probate.
    An attorney who superintended the execution of the subsequent will, and who, with the assent and approval of the testator at that time, read aloud the revocation and attestation clauses of the will, is not incompetent, under section 885 of the Code of Civil Procedure, to testify as to what was said and done at the time the will was executed.
    In such a case the failure to find the subsequent will after the testator’s death raises a strong presumption that it was destroyed by the testator animo revocandi, and in a proceeding for the probate of such will, as a lost or destroyed will, the burden of overcoming such presumption rests upon the petitioner. It is not sufficient for the petitioner to show that some one whose interest was adverse to the will had an opportunity to destroy it, but he must go further and show by facts and circumstances that the will was actually lost or destroyed.
    Appeal by the proponent, Kittie M. Larzelere, from a decree of the Surrogate’s Court of the county of Yates, entered in said Surrogate’s Co„urt on the 28th day of July, 1901, refusing to admit to probate an instrument purporting to be the last will and testament of Herman S. Barnes, deceased.
    
      Calvin J. Huson, for the appellant.
    
      Thomas Carmody, for the respondents.
   Davy, J.:

On the 2d day óf January, 1901, the appellant presented her petition-to the Surrogate’s Court of Tates county, praying that the last will and testament of Herman S. Barnes, deceased, bearing date June It, 1897, be admitted to probate, and a citation was duly issued thereon to all parties interested in said estate. On the return of said citation, J. Franklin Barnes, a son of thé deceased, filed an answer, denying that the paper • so presented for probate was the last will and testament of said deceased, and alleging j that subsequent to the execution thereof, and on or about the 30th¡ day of November, 1900, the deceased made another will, revoking the former will, and that the last will had been lost or destroyed ¡jince the death of the testator. Subsequently said J. Franklin Barnes presented a petition for the probate of the will alleged to have been executed by deceased on the said' 30th day of November, 1900, as a lost will, to which the appellant interposed an answer, putting in issue all the material allegations of the petition. After heading the proofs offered by the respective parties, the acting surrogate found, as conclusions of law based upon the findings of fact, that upon the execution of the will dated November 30, 1900, the deceased thereby revoked the former will of June 17, 1897, ánd that said last-mentioned will had no legal existence. He also found that the will dated November 30, 1900, was lost or destroyed ; that by the terms of said will the testator expressly revoked all fonder wills by him made; that the contents of said will were not established by sufficient evidence, and, therefore, it could not be -admitted to probate; and, that the said decedent, since the loss pr destruction of said will of November 30, 1900, did not execute, re-establish or republish said will of June 17,- 1897; therefore, neither of said wills was entitled to probate. j

Under the statute a lost or destroyed will can be admitted to prpbate in the Surrogate’s Court- only in a case where a judgment-establishing the will could be rendered by the Supreme Cburj;. (Code Civ. Proc. § 2621.) The statutory enactment which provides for the proof of a lost or destroyed will in the Supreme Court states that The plaintiff is not entitled to a judgment establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at' least two credible witnesses, a correct copy or draft being equivalent to one witness.” (Code Civ. Proc. § 1865.) It will be seen from this provision of the statute that the petitioner was obliged to prove either that the will was in existence at the time of the testator’s death, or that it had been fraudulently destroyed in his lifetime. It appears from the testimony that the testator took possession of the last will immediately after its execution, and it does not appear what he afterwards did with it, and no evidence was given that it was in existence at the time of the testator’s death or that it was fraudulently destroyed during his lifetime. It appears that a careful and thorough search was made among the private papers and effects of the deceased, and the will could not be found.

It was held in Collyer v. Collyer (110 N. Y. 186) that where a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was destroyed by the testator animo revocandi. (Matter of Kennedy, 167 N. Y. 163.)

The burden of overcoming this presumption rested with the petitioner. It was not sufficient to show that some one of the relatives had an opportunity to destroy it. The petitioner should have gone further and shown by facts and circumstances that the will was actually lost or destroyed. The fact that the testator’s daughter, who was with him during his last illness, and whose interest was adverse to the will, refused to allow her brother to examine the papers in the testator’s bureau drawer a short time before his death is a suspicious circumstance ; it is not sufficient evidence, however, of the existence of the will at the time of- testator’s death, or of a fraudulent destruction of it during his lifetime.

The learned counsel for the appellant contends that the acting surrogate erred in holding that the last will was properly executed. It appears from the evidence that the testator read the will before it was executed, and that the attorney who drew it read over to the testator and the subscribing witnesses, all of whom were present in the attorney’s office at the time of its execution, from the place in the will where the name of the executor is mentioned down to and including the clauses, revoking any and all former wills by me at any time made,” and the attestation clause; that after he had finished reading these clauses the deceased signed the will, and then the attorney said to him, “ do you say this is your last will and testament, and do you request these gentlemen to sign it as witnesses,” and he said “ yes,” and they sat down to the table one by one and signed it. These facts are corroborated by the attesting witnesses.

It is urged by the appellant that this is not a compliance with the statute that prescribes the formalities to be observed in the revoca, tion of wills. .The statute provides: “Ró will in writing except in the cases' herein after 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 by law to be executed; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.” (3 Birdseye R. S. [3d ed.] 4020, § 10.)

Section 21 of the statute referred to provides that “ If, after the making of any will, the testator ■ shall duly make and execute a second will, the destruction, cancelling or revocation of such second will shall not revive the first will, unless it appear by the terms of such revocation that it was his intention to revive and give effect to his first will, or unless after such destruction, cancelling or revocation, he shall duly republish his first will.” (Id. 4022.)

In Matter of Stickney (161 N. Y. 42) the court held that a will that has been revoked by a subsequent one, which is destroyed by the testator, is not revived by his declaration that lie desires his first will to stand, made to others than the subscribing witnesses.

There is no evidence.in this case that the testator either intended or attempted to revive the former will, so we have the imcontradicted proof of . the execution of a will by the testator upon the 17tli day of June, 1897, also the proof of the making and execution of a subsequent will upon the 30th day of Rovember, 1900, which subsequent will was executed with the prescribed formalities required by law, declaring in express terms in the instrument' itself that all former wills made by the testator were revoked. It is urged that even if the subsequent will were executed with all the-formalities required by statute, it did not revoke the former will, for the reason that the subsequent will had not been admitted to probate. The fact that the proofs did not authorize the surrogate to admit the subsequent will to probate does not afford any valid reason why the former will should be revived. The first will, when revoked by the subsequent will, had no longer any legal existence.

It was said in Wallis v. Wallis (114 Mass. 512), that “ When a testamentary instrument is lost or destroyed it cannot be admitted to probate without clear and satisfactory proof of its whole contents. * * * If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is, nevertheless, a good revocation, and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will.” (Nelson v. McGiffert, 3 Barb. Ch. 158, 164; Day v. Day, 3 N. J. Eq. 549 ; Matter of Forbes' Will, 24 N. Y. Supp. 841.)

In'Page on Wills (§ 270) it is stated that “If the lost will is shown to have contained .a clause of express revocation, the first will is not in force, even where it is impossible to prove the contents of the lost will further than such revocation clause.”

Underhill on the Law of Wills (Yol. 1, § 266) lays down the rule that where a will, proved to .have been executed, is shown to have been lost or to have been destroyed by the testator or some other person, all the contents of the lost will need not be proved, if enough is proved to show that it revoked the former one. If the court is satisfied that the subsequent will was properly executed, the revocation clause may be proved in opposition to an application to probate an earlier will, even though the revocatory writing, which was lost, has never been admitted to probate.

It is urged by the learned counsel for the appellant that the evidence given by the attorney Evarts, pertaining to the execution of the will of November 30, 1900, was incompetent under section 835 of the Code of Civil Procedure, which prohibits the disclosure by an attorney of a communication made by his client to him, or his advice given in the course of his professional employment. His testimony was undoubtedly very material and important in its bearing upon the question as to whether the will was properly executed, and if erroneously admitted, would - lead to a reversal of the judgment appealed from. When Evarts read the attestation and revocation clauses of the will in the hearing and presence of the testator and the subscribing witnesses, with the testator’s assent and approval, it was an express waiver of secrecy within the meaning of the statute; it would seem that the testator had no intention that tlie lips of the attorney should be sealed as to what took place at the time the will was executed, or that he should be prevented from testifying in support of the will. (Hurlburt v. Hurlburt, 128 N. Y. 424; Rosseau v. Bleau, 131 id. 183.)

In Matter of Chase (41 Hun, 204) Justice Fóllett said : “ The draughtsman of a will, though he is an attorney, is not incompetent under section 835, Code Civil Procedure, to testify in support of the will to the instructions received from the testator in respect to the provisions to be incorporated in the will.” (Sheridan v. Houghton, 16 Hun, 628; affd., 84 N. Y. 643; Hebbard v. Haughian, 70 id. 55.)

The act of the attorney in asking the testator if he acknowledged the instrument to be his last will and testament, and if he desired the parties present to sign it as witnesses, is not an unusual one. It frequently occurs. in executing wills that words of request or acknowledgment come from the party who is assisting the testator in the preparation and execution of his will.

It was held in Matter of Nelson (141 N. Y. 157) that a request to sign as a witness, made by the person superintending the execution of a will in the hearing of the testator and with his silent permission and approval, is a sufficient compliance with the requirements of the statute. (Gilbert v. Knox, 52 N. Y. 128; Peck v. Cary, 27 id. 9.)

The fact that the instrument in question was the will of the testator, was made known to the witnesses by the declaration of Evarts, who acted and spoke for the testator, not only in preparing the will, but seeing that it was properly executed. We are of the opinion that the testimony of Evarts as to what "was said and done at the time the will was executed was competent.

It is not necessary to discuss the other exceptions, for the reason that the will was not admitted to probate and, therefore, the appellant was not prejudiced by the rulings of the court.

' The decree of the Surrogate’s Court should he affirmed, with costs to the respondent, to be paid by the appellant personally. Decree affirmed.

McLennan, Spring, Williams and Hiscook, JJ., concurred.

Decree of Surrogate’s Court affirmed, with costs of this appeal to the respondent, payable by the appellant personally.  