
    In the Matter of the Probate of the Last Will and Testament of Benjamin F. Curtis, Deceased. Frank W. Baum, Appellant; Louis B. Hasbrouck, as Executor, etc., of Benjamin F. Curtis, Deceased, Respondent.
    Second Department,
    December 10, 1909.
    Will — cancellation of single clause — revocation — original contents of will — evidence.
    The tearing or obliteration of one clause of a will, although with the purpose of revoking the same and permitting the remainder of the will to stand, is not effectual for that purpose.
    Where a testator tears off a clause of his will and Writes in the margin that it was canceled and signs his name, the instrument will be probated as originally executed and witnessed.
    Where the 3d paragraph of a will, which began near the bottom of the first sheet, is clearly incomplete, and a portion of the sheet has been cut or torn off and a memorandum of the testator in the margin states that it was canceled and the testimony of all the witnesses to the execution of the will is to the effect that it was not in its present form when executed, a finding that the 3d clause of the will' contained no ¡other words than those now appearing, is against the weight of evidence, and a decree admitting the will to probate will be reversed and the proceedings remitted to the Surrogate’s Court.
    Appeal by Frank W. Baum from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 16tli day of January, 1909, admitting to probate a paper alleged to be the last will and testament of Benjamin F. Curtis, deceased.
    
      William H. Sporborg \Josiah Canter with him on the brief], for the appellant.
    
      Henry J. Wehle [John II. Judge with him on the brief], for the respondent.
   Burr, J.:

The first question presented in this case is whether the last will and testament of Benjamin F. Curtis, the due execution of which was conclusively established, was revoked or altered by him in his lifetime. The paper offered for probate consisted of several sheets and contained five paragraphs numbered from first to fifth inclusive. The paragraph numbered 3 was incomplete upon the paper as offered. It contained the words: “ Third :■ I give aiid bequeath unto my brother-in-law, Frank.” This paragraph began near the .foot of the first sheet. A portion of the bottom of that sheet was missing. It presented the appearance of having been either cut or torn off. In the margin and nearly opposite the words above quoted was a memorandum in the handwriting of the said Curtis, “ Can-celled the 3rd paragraph, June 30, 1908, B. F. Curtis.” The testimony of all of the witnesses to the execution of the will was to the effect that when it was executed it was not in its present form. As was stated by one of them, at that time, It was a complete instrument— that third paragraph was still in the will. The first page of the will which was signed by me and the other witnesses contained a full first page and the paper now handed to me at the bottom of the first page has a portion torn off removing a part of the third paragraph.” Attached to the original will is a codicil, and the same witness, testifying in regard to the execution of the ctidipil, said : “ I must have seen the will at that time. It was in the same condition as at the time I signed the original will.” Another witness, testifying as to the execution of the codicil, said: “ I saw the will there. Mr. Carley was handling the will at that time. He was turning over the pages and ! saw the original will. It was a perfect will at that time — no mutilation or destruction of any part of it; it was a complete will. * * * When I' signed the codicil I say that it was not mutilated, as it is now shown me. I am sure that it was not mutilated when the codicil was written and signed. * * * I, myself, engrossed the original will and codicil, so that I know positively that it was complete when the codicil was written there.” Still another witness, testifying as to the execution of the will, said: “It (the first page) was not in the same condition then as now. * * * ■ At that' time the will was in perfect condition so far as the first page was concerned.” Assuming, as we must upon the evidence in this case, that the mutilation of the paper was the act of the said Curtis, we are of the opinion that by such act the will was neither revoked nor altered in the manner'prescribed by the statute. (2 E. S. 64, § 42.) This statute permits the revocation of a will in three ways: (a) By some other will in writing; (b) by some other writing of the testator, declaring such revocation and executed with the same formalities with which the will itself was required by law to be executed; (c) by burning, tearing, canceling, obliterating or destroying with the intent and for the purpose of revoking the same. But the statute permits a will to be altered only in one or the other of the first two methods described. The tearing or obliteration of one clause in a will, although with a purpose of revoking the same and permitting the remainder of the will to stand, is not effectual for that purpose. No tearing or obliteration can be effectual unless1 it altogether destroys the whole will and was intended so to do. (Lovel v. Quitman, 25 Hun, 537; affd., 88 N. Y. 377; Burnham v. Comfort, 108 id. 535, 540.) While it may be conceded that there is some evidence of an intention on the part of the testator to alter his will and revoke the 3d paragraph thereof, mere intention to revoke or alter is ineffectual unless accompanied by such physical act as the statute declares to be necessary to accomplish the purpose. (Matter of Akers, 74 App. Div. 461; affd., on opinion below, 173 N. Y. 620.) As there was, therefore, no effectual alteration of any part of the will, or revocation of the 3d paragraph thereof, if any will is to be admitted to probate, it must be a will in the form and condition in which the will was when originally executed and witnessed. (Schouler Wills [3d ed.], p. 484, § 434; Simrel's Estate, 154 Penn. St. 604; Jackson v. Holloway, 7 Johns. 394; Quinn v. Quinn, 1 T. & C. 437; Matter of Wilcox's Will, 20 N. Y. Supp. 131; Matter of Penniman, 20 Minn. 245; Hesterberg v. Clark, 166 Ill. 241.) But the paper admitted to probate by the learned Surrogate’s Court of Queens county is not in the form and condition in which the will of Benjamin F. Curtis was when originally executed ahd written. The second finding of fact of the said Surrogate’s Court to the effect that the will made and executed by the said Benjamin F. Curtis was “ in the words and figures following; • * * * Third. I give and bequeath unto my brother-in-law, Frank,” and the seventh finding of ffact to the effect “that no proof has been made that the Third paragraph of said will contained any other words than as found by me in the 2nd finding herein,” is not only not sustained by the evidence, but is directly contrary to all of the evidence introduced in the case. Whether upon the evidence that was intróduced, with respect to the contents of paragraph 3 of the said will the Surrogate’s Court would have been justified in finding exactly what the language of that paragraph originally was, we express no opinion, as upon the new trial, which must be had herein; additional evidence may be introduced. It would be unfortunate if by reason of inability to produce sufficient satisfactory evidence upon that point it became necessary to deny probate, altogether. (Matter of Barber, 92 Hun, 489.)

The decree of the Surrogate’s Court of Queens county must be reversed and a new trial ordered, with costs of this appeal to the appellant to be paid oiit of the estate.

Hirsohberg-, P. J., Jerks, Digh and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Queens county reversed, and proceedings remitted for determination in accordance with opinion, with costs to the appellant to be paid out of the fund. '  