
    Aaron L. Smock vs. Lydia Smock and others.
    A writing sought to be established and proved as the last will of decedent, was executed by him as his will in due form of law in 1846. After testator’s death in , it was found, on the day of his funeral, by his widow and two of his sons, in a private desk of decedent. It was wrapped up in a newspaper. The name of testator and the seal were cut off with a sharp instrument, leaving only the letter B — the first letter of testator’s name — -partly remaining. Held, that the testator is presumed to have done the act, and that the laW further presumes he did it ditimo retiocandi.
    
    Although the statute says nothing of a cancellation by mistake or accident there can be no doubt that such a cancellation would not render the will in. valid. The act would want the animus revocandi.
    
    The will is presented under circumstances from which the presumption arises, that it was cancelled in a manner which the statute declares effectual — by tearing or obliterating the same by the testator himself. This presumption arises from the fact, that the will was in the possession of the testator during his lifetime, and at his death was found among his papers, mutilated in a way showing a design to cancel it.
    This presumption is greatly strengthened by proof of the fact, that the testator was accustomed, for many years previous to his death, to cancel instruments of writing, such as promissory notes, &c., by taking off his name, sometimes by tearing it off, and sometimes by cutting it off with a sharp instrument.
    The presumption is not overcome by his declaring, to a person attending him in his last sickness, and eight or ten days before his death, in answer to an inquiry put to him by such person, that the will was in his desk, and that it was all right.
    The hill alleges that Aaron L. Smock, of the county of Monmonth, was at the time of his death seized and possessed of real and personal property in Monmouth county, where he died, of the value of about $20,000; that on the 31st day of August, 1836, he made his will, executed in due form of law. By this will, the decedent makes provision for his wife and four daughters. He devises and bequeaths to liis son Aaron all his estate, real and personal, except what is otherwise disposed of in and by the said will, subject to his wife’s right of dower, and subject, also, to the payment of the legacies and bequests in said will made to his daughters and grandchildren, charging the real estate so devised to his son Aaron with the payment of the said legacies. The will concludes as follows: “ Having heretofore made advances to my sons Ira Smock and Hendrick Smock, who is now deceased, amounting to what I intended they should have of my estate, is the reason that I have made them no bequest or devise in this my last will and testament.” The bill alleges that, after the will was executed, the decedent took possession of the said will, and laid the same away in his secretary, or writing desk, in his dwelling house, where it was kept by him, and remained until after his death, with the endorsement “ Barnes B. Smock’s will,” in the handwriting of Henry D. Polhemus, a counsellor at law, who drew the will. The bill further alleges that, after the execution, he frequently spoke of this will and its contents; that he died on the 20th of September, 1854, and that during his last illness and the preceding summer, he alluded to this will, speaking of it as having been made; that for the last ten days or two weeks of his illness, he was so low and sick that .he could not get out of his bed, and that within that time he spoke of this will to one Logan Bennet, who was with him’from the commencement of his sickness till his death, and said that the will was in his desk, and that it was all right. The bill further states, that two days after the death of decedent, and on the day he was buried, after the funeral, the complainant, his mother, and brother Ira were looking over the papers in the desk for the will, and the same was found in one of the small drawers of the the desk wrapped up in a newspaper, a copy of the Fredonian of August 5th, 1846; and the said will was opened, and the said Ira commenced reading the same, and shortly afterwards it was discovered that some person had attempted to mutilate the same, by cutting off, with a pair of scissors or other sharp instrument, a part of the name of the said Barnes B. Smock, to wit, all of the signature except the capital B in Barnes. The bill charges, that some person or persons, other than the testator, and without his knowledge or consent, either shortly before his death, or after his death, and before the same was opened and read by the said Ira Smock as aforesaid, fraudulently, surreptitiously, and clandestinely defaced, cut, and injured the said will, intending to spoliate and unlawfully destroy the same, and so that, upon the production thereof for probate, there might be difficulties and doubts arising in refereime to the same. The bill further states, that the desk where the will was found was never kept locked, and that the family had at all times free access to the room where the desk was, and that there was not, at any time during the decedent’s sickness, or after his death, anything to prevent a person, so disposed, from getting possession of, and secretly mutilating the will. The bill further states and. shows, that the said Barnes B. Smock was eighty years and three months old when he died; that he lived on his homestead farm, where he died, for a large portion of his life, which homestead is devised in and by his said will to the complainant; that said Barnes B. Smock, some sixteen years ago, when his son Hendrick married, conveyed and advanced to him a farm, valued at about $15,000, and took upon it, for a part of said amount, a mortgage of $6500, which mortgage was afterwards assigned to the said Ira Smock, another son of said Barnes, and was an advancement to him, the said Ira, and that there was advanced afterwards to said Ira some $3000 more. The bill further states and charges, that there were some advancements made, also, to Eleanor Conover, a daughter, and to Ann, another daughter; that the complainant always lived at home and labored on the farm, and expended all his time, labor, and energy for the benefit of the farm and estate of his father, and has never made or had any separate accumulation of property, and has never been advanced by his father, and has known for many years that his father intended that he should have the homestead farm, and that there was no estrangement of feeling between his father and the complainant; that the disposition of the estate in and by the said will is in accordance with the frequently expressed intentions of the said Barnes B. Smock. The bill further states, that the complainant and his family lived with his father, and that the complainant’s sister, Williampe, was also a member of the family; that Williampe became estranged from the complainant, and exhibited unfriendly feelings towards him, and that she, both before and after her father’s death, had free access to the desk in which the will was deposited. The bill further shows, that at the time of the death of said Barnes B. Smock, he left surviving him Lydia Smock, his widow, and the following children : Eleanor Conover, widow of Jacob IT. Conover, deceased, the eldest child, the complainant, the oldest son and second child, Williampe Smock, the third child, Ann Blauvelt, the fifth child, and then the wife, hut now widow of Dr. Charles C. Blauvelt, since deceased, and Ira Smock, the sixth and youngest child, and also a granddaughter, Lydia Ann Smock, about the age of fourteen years, the daughter and only child of Hendrick Smock, the fourth child of the said Barnes B. Smock, which said Hendrick died some twelve years before his father. The bill prays that the said will may be proved and established under the authority of this court, and prays other specific relief, with a prayer for general relief.
    To this bill Lydia Smock, Eleanor Conover, Williampe Smock, and Ann Blauvelt filed a joint and several answer. They admit the property left by the decedent at his death, but allege it was worth more than $22,000, and in their opinion was worth about $30,000. They say, it may he true that the paper writing in question was executed by the decedent as his will, as stated in the bill, but they were not present at its execution, and had no knowledge or information of the same; they therefore leave the complainant to prove it. They deny that they knew of the alleged will’s being in the desk, or in the house of the decedent; they allege and say, that they had never seen the same, and did not know it was in existence until after it was found, as stated in the bill. They further say, that they did not know that the decedent ever informed any one of the contents of the said writing; that he never spoke to them as to the contents of the same, and that he never informed any one of the contents of the same in their presence; they deny that the decedent, during his sickness, or during the summer immediately preceding his sickness, spoke to any one of his will being in existence, or as to what was his determination in respect to the disposition-of his property; they allege that the said Bennet has repeatedly stated the conversation the defendant had with him differently from what is alleged in the complainant’s bill; they allege that the decedent himself cancelled the will, and that he died intestate; they allege that the said decedent, when he desired to destroy any paper having his name to it, was accustomed to do so by cutting his name therefrom, and preserving the paper so cut. The answer admits the advancements to his sons, Hendrick and Ira, as stated in the bill. The answer further states, that although the complainant had lived on the homestead farm with his father for many years, that he had the farm upon shares, and received his share of the proceeds and profits from the same, according to an agreement between himself and his father, and that from his want of energy and labor his father derived but little benefit from his labor; they deny that the devise and bequests to the complainant in the alleged will are in accordance with the expressed intentions of the said Barnes B. Smock for a considerable time before his death; and they allege, that repeatedly, during the two years immediately preceding his death, he declared to various persons his dissatisfaction with the complainant, and evinced a growing distrust of the complainant, as to his interest in the welfare of himself and the family, and his want of confidence in the ability of the complainant to manage a farm so as to make a living upon it, and declared, if he ever had a farm, he would be unable to keep it; they say, from the repeated declarations'of the decedent, that for a considerable time before his death it was not his wish or intention that the complainant should have his real estate. The defendants, each, separately deny all knowledge of the existence of the alleged will, of its being in the desk as stated, or of its being mutilated, until it was produced.
    Ira Smock answers separately, and his answer is a full denial of all knowledge that such a will was in existence, and all knowledge as to who cut and mutilated it.
    The answer of Ann Smock, by her guardian, is also a denial of all knowledge of the alleged will, or of its mutilation.
    
      
      B. F. Randolph and W. L. Dayton, for complainant.
    
      Joel Parker and M. Beasley, for defendant.
   The Chancellor.

The writing which it is the object of this bill to establish and prove as the last will and testament of Barnes B. Smock, was executed by him, as his will, in due form of law, on the thirty-first day of August, 1846. This is proved by the subscribing witnesses to the instrument. There is no one who testifies to having seen the will, from the time of its execution until its discovery after the testator’s death. It was then found, on the day of his funeral, by his widow and his sons Ira Smock and the complainant, who were looking among the decedent’s papers for a will, in a drawer of a desk in his bed-room, where he kept all his papers of any value. It was wrapped up by itself in a newspaper, called the Fredonian, of the date of August 5th, 1846. The name of the testator and the seal were cut off, leaving only the letter B, the first letter of the testator’s name, partly remaining. From the inspection of the instrument, it is apparent that the mutilation was made by scissors, or some other sharp instrument ; and that by whomsoever it was done, it was the intention of the person doing it to cancel it, and destroy its validity as a will. The act is not equivocal. It was not done by mistake or accident. The mode in which it was done manifests the intention of its author.

This will was in the custody of the testator during his life, and upon his death it was found among his depositories cancelled, with his name and seal cut off. Under such circumstances, the testator himself is presumed to have done the act, and the law further presumes that he did it animo revocandi. 1 Williams on Ex. 78. In a late case, decided in the Prerogative Court, (afterwards taken up on appeal to the Delegates, where the decision below was affirmed) a will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no other part, of the writing: and it was held that the court were bound to construe the act as one done by the testatrix for the purpose of cancelling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked. Moore v. Moore, 1 Phillim. 375; 1 Williams on Ex. 74. The same principle will be found established by the following cases: Freeman v. Gibbons, 2 Hagg. Eccl. Rep. 328; Bumgarten v. Pratt, Ib. 329; Richard v. Mumford, 2 Phillim. Rep. 23; Loxley v. Jackson, 3 Phillim. Rep. 126; Wilson v. Wilson, 3 Phillim. Rep. 552; Davis v. Davis, 2 Add. Eccl. Rep. 223; Colvin v. Frazer et al., 2 Hagg. Eccl. Rep. 266; Holland v. Ferris, 2 Bradford's Rep. 334; Bulkley v. Redmond, Ib. 282; 6 Wend. 180.

By the statute (Nix. Dig. 873, § 2,) it is provided that no devise or bequest in writing, of any lands, tenements, hereditaments, or other estates whatsoever in this state, or of any estate per autre vie, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction and consent.” And by a subsequent statute (Nix. Dig. 877, § 25,) “ all written revocations of wills shall be executed in the same manner as wills are hereby required to be executed, and when so made shall be sufficient to revoke any last will, or a part thereof.”

The complainant produces the will. But upon its face it is a mutilated, cancelled will. It is not suggested that it was cancelled by mistake or accident. Although the statute says nothing of a cancellation by mistake or accident, there can be no doubt that such a cancellation would not render the will invalid. The act would want the animus revocandi. It is not suggested that it was cancelled under circumstances which would render the act inoperative and ineffectual under the express provisions of the statute, as if done by some other person than the testator, but not in his- presence, although by his direction and consent. The will is presented under circumstances from which the presumption arises that it was cancelled in a manner which the statute declares effectual — by tearing or obliterating the same by the testator himself. To strengthen this presumption, which arises from the fact that the will was in the possession of the testator during his lifetime, and at his death was found among his papers mutilated in a way showing a design to cancel it, we have an additional fact, proved in this case, very significant in its character. It was cancelled in a manner in which the testator was accustomed, for many years previous to his death, to cancel instruments of writing. A large number of papers are produced, such as promissory notes, agreements, &c., running through a number of years, which the testator had paid off. They were found in his desk at his decease. They are all mutilated, in the same mode this will is, by having the name taken from the writing. Some are torn off, and some, with more care, like this will, have the name cut off with some sharp instrument. This is certainly a fact of some importance to show that the testator mutilated the j>aper, and his intention in doing it — to destroy the validity of the instrument.

The complainant must overcome the presumption which exists against the validity of the instrument. As the case stands, he has no alternative but to take the ground, that this will was mutilated criminally by some person other than the testator. Indeed this is the hypothesis assumed by the bill; and while the charge is not directly made, it is intimated that the act was committed by some, or one, of the defendants. They have all explicitly and circumstantially denied the charge. They deny having any knowledge that such a will was in existence; that they ever saw or heard of it until it was found in the condition it now is, after the death of the testator. There is no attempt made to impeach the denial of any of the defendants, except that of Ira Smock. There is evidence to show that he made some remarks, shortly before his father’s death, indicating some knowledge of the existence of such a will. But there is not a particle of evidence, or a circumstance in the whole case, which could justify any court in assuming that there was any ground for the slightest suspicion of any of the" defendants being criminally connected with the mutilation of the paper in controversy. The only evidence calculated to raise the slightest doubt as to the will’s having been cancelled by the testator himself, is to be found in the testimony given by Logan Bennet. And yet with regard to this evidence, laying out of view the consideration that its accuracy is made doubtful by his having related the circumstances to which he now testifies differently to different individuals, I think the declarations of the testator, to which he testifies, are not inconsistent with the presumption that the testator cancelled the will.

Logan Bennet was with the testator most of the time during his last illness. He knew of the fact of the will in question having been executed. The testator had asked him to be one of the subscribing witnesses, and he was prevented in consequence of being out of the way at the time of its execution. He testifies as follows: “I asked Mr. Barnes B. Smock about his will eight or ten days before he died; I was then staying there; I asked him Avliere his will was; he said it was in 'his desk; I asked him if it was all .right; he said it was.”

How if the testator himself had introduced the conversation about the will, and had called the attention of the Avitness to the fact of its being in his desk, as the repository Avhere it might be found, there would be something very significant in the circumstance. But here is a witness, who is in no manner interested in the will, asking him an impertinent question — where his will was ? Upon the presumption that he had himself cancelled it, he had cancelled it secretly. He did not wish his family to know anything about it. It is not to be supposed, then, that he would have revealed to this witness the very fact he had been studiously keeping secret. Upon the presumption that he had cancelled it, he could not have answered the question in any way more consistent with that presumption, and a desire to evade the question and conceal the fact of the cancellation, than by replying, as he did, that it was in his desk: it was in his desk, and there it was found after his decease. The witness then asked him if it was all right ? Hard pressed as he was by these questions of the witness requiring categorical answers, but so luckily put that they might be answered in a manner consistent with the truth, and yet deceive an inquisitive inquirer, the testator laconically replies, “ it is.” All this was perfectly consistent with the presumption of his having cancelled it. It was in his desk, and it was all right. He had secretly cancelled it, and any other answers than those he gave the witness would have defeated his object in cancelling it in the way he did, and would have been calculated to create the very disturbance in the family which he probably desired to avoid.

There are other facts relied upon to overcome the presumption of the testator’s having cancelled the will. They are mainly the declarations of the testator recognising the existence of the will, and his speaking of the devises and bequests contained in it. These declarations were made more than a year prior to the testator’s death; and this fact destroys all influence that can be deduced from them to overcome the presumption. The fact, that up to within a year of his death, the testator freely spoke of the will— his ceasing to do so during the last year of his life strengthens the presumption that he cancelled it. While it was in existence he did not hesitate to speak of it. He ceased to speak of it because it had ceased to exist.

The complainant has failed to establish the case made by his bill, and it must be dismissed with costs.  