Matter of Alger

9 Citing cases

  1. In re Powers

    17 N.Y.S.3d 385 (N.Y. Surr. Ct. 2015)

    (i) The testator.As there was no burning, tearing, cutting, obliteration or other mutilation or destruction of the Will, the issue is whether the testator's actions, as described above, cancelled it. Objectant's counsel cites several cases in support of his contention that is does including In re Alger's Will, 38 Misc. 143 (1902) [citing Warner v. Warner's Estate, 37 Vt. 356 ]; In re Semler's Will, 176 Misc. 687 (1941) ; and In re Parson's Will, 119 Misc. 26 (1922).Objectant's counsel asserts that this case is most similar to the facts in In re Parson's Will, supra, wherein the Court found a cancellation.

  2. In re Proceeding

    2015 N.Y. Slip Op. 50966 (N.Y. Surr. Ct. 2015)

    (i) The testator. As there was no burning, tearing, cutting, obliteration or other mutilation or destruction of the Will, the issue is whether the testator's actions, as described above, cancelled it. Objectant's counsel cites several cases in support of his contention that is does including In re Alger's Will, 38 Misc 143 (1902) [citing Warner v Warner's Estate, 37 Vt. 356]; In re Semler's Will, 176 Misc 687 (1941); and In re Parson's Will, 119 Misc 26 (1922). Objectant's counsel asserts that this case is most similar to the facts in In re Parson's Will, supra, wherein the Court found a cancellation.

  3. In re the Estate of Sax

    25 Misc. 2d 576 (N.Y. Surr. Ct. 1960)   Cited 6 times

    Direct proof of such fact is lacking and the sole basis for any such conclusion is the inference arising from the fact that both the words and the decussations are in red, a color not normally employed for casual writing. The word cancellation as used in section 34 of the Decedent Estate Law has been defined as the making of cross lines upon a writing ( Matter of Alger, 38 Misc. 143) and it was said in Matter of Barnes ( 76 Misc. 382, 384-385): "The only office which lines upon the face of a will need fulfill in order to invoke the warrant of the statute quoted supra is that they shall be a manual indication by the testator of the mental conception that he intends to annul his will.

  4. Matter of Berman

    185 Misc. 1037 (N.Y. Misc. 1945)   Cited 5 times

    Since the parties have conceded that the words which purport to cancel the propounded instrument are in the handwriting of the decedent and that the alleged will was in his possession at the time of his death, the only question remaining is whether or not the notations constituted a cancelation. An examination of the decisions in this State discloses that in any case where it has been held that there was a revocation of a will by cancelation, there was some defacement of the words of the instrument ( Matter of Parsons, supra; Matter of McCaffrey, 174 Misc. 162; Matter of Kutzner, 173 Misc. 776; Matter of Kuntz, 140 Misc. 598; Matter of Cronin, 124 Misc. 848; Matter of Barnes, 76 Misc. 382; Matter of Alger, 38 Misc. 143). Neither the briefs of counsel nor the independent research of the court has unearthed any case in this State where it has been held that a will may be canceled by a writing such as this now under consideration, which does not touch the original words of the will.

  5. Matter of Semler

    176 Misc. 687 (N.Y. Surr. Ct. 1941)   Cited 7 times

    It is sufficient if an absolute revoking intention exists manifested by an act, however slight in its nature, which can fairly be considered as a tearing, burning, canceling or obliterating within the meaning of the statute. ( Matter of Alger, 38 Misc. 143, 146.) In Matter of Kutzner ( 173 Misc. 776, at p. 778) the court said: "Of course, where either method is employed, the intent to revoke must be co-existent with the physical act of cancellation or obliteration.

  6. Matter of Kutzner

    173 Misc. 776 (N.Y. Surr. Ct. 1940)   Cited 8 times
    In Matter of Kutzner (173 Misc. 776, at p. 778) the court said: "Of course, where either method is employed, the intent to revoke must be co-existent with the physical act of cancellation or obliteration.

    In my judgment the instrument has been canceled and obliterated. In discussing the origin and meaning of the word "canceled" as used in the statute, Surrogate CHURCH in Matter of Alger ( 38 Misc. 143, 144-146) says: "The word `cancel' is derived from the word `cancelli,' cross-bars or lattice work. Hence, as originally used, referred to making cross-lines on writing * * *. There is no doubt that originally, the word `cancel' was confined to the making of cross-marks, indicating the lattice work from which it was derived, and grew to be adopted for such purposes in consequence of the fact that in early times few persons were capable of writing, and, therefore, were permitted to manifest their intention by drawing lines across the face of a paper.

  7. Matter of George W. Parsons

    119 Misc. 26 (N.Y. Surr. Ct. 1922)   Cited 23 times

    It must be an act done to the will itself, and on the will itself, by words which manifest an intent to annul it. The following cases in this state deal with the question of revocation: Matter of Alger, 38 Misc. 143; Matter of Van Woert, 71 id. 372; Matter of Philps, 19 N.Y.S. 13; Matter of Clark, 1 Tuck. 445; Matter of Brookman, 11 Misc. 675; Matter of Miller, 51 id. 156. In a memorandum opinion in Matter of Schweizer, N.Y.L.J. February 28, 1912, Surrogate Fowler said: "The paper propounded as a will being last in the testator's own custody and at his death being found with the seal detached, the testator's subscription cancelled, the names of the witnesses erased, and the words `I cancel this will for good reasons' underwritten in testator's own hand, must be taken to have been revoked in his lifetime by testator himself.

  8. Matter of Van Woert

    71 Misc. 372 (N.Y. Surr. Ct. 1911)

    He also cites Heaton on Surrogates, § 141, where it is said that "It is not necessary in order for a will to be revoked by burning that it should be completely consumed by the fire, or for a will to be revoked by tearing that it should be completely torn to pieces, but that where the testator desired to revoke the will and threw the same into the fire and the same had been but slightly scorched, so that the handwriting is still legible, that still was a sufficient revocation." This is evidently upon the authority of Matter of Alger, 38 Misc. 143, in which Surrogate Church held that codicils were revoked, one by lines drawn across all its provisions and the word "cancelled" written in two places with a date in another place — the other where the first clause had various pencil marks across it and at the foot of the attestation clause was written a statement signed by the testator to the effect that the codicil was cancelled. In all these cases the intention to affect the whole instrument was manifest.

  9. Matter of Miller

    51 Misc. 156 (N.Y. Misc. 1906)   Cited 2 times

    From these facts a court is allowed to draw but one conclusion, the legal conclusion of revocation. Matter of Hopkins, 73 A.D. 559; 172 N.Y. 360; Matter of Brookman, 11 Misc. 675; 67 N.Y. St. Repr. 397; Matter of Philp, 19 N.Y.S. 13; 46 N.Y.S.t. Repr. 356; Matter of Alger, 38 Misc. 143. The fact that the testator was acquainted with the law of wills strengthens the presumption of revocation by cancellation, since the method adopted by him has long been recognized as a proper and legal manner of revoking a will.