Opinion
May, 1908.
Clifford Couch, for proponent.
The last will and testament of Harriet Kissam, executed and attested in manner prescribed by law, has been presented for probate. It is accompanied by an instrument in writing, duly acknowledged, executed by all the heirs at law and next of kin of decedent, waiving the issuing and service of citation, and consenting that the will be admitted to probate. It appears, by an examination of the will, which is typewritten, that a part of the second clause has been erased. The statute directs that "Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will, and the validity of its execution." Code Civ. Pro., § 2622; Matter of Bartholick, 141 N.Y. 166, 172. Inquiry into the facts and circumstances by examination of two credible witnesses, the scrivener, who also was one of the subscribing witnesses, and the testatrix's sister, to whom testatrix read the will after it was executed, clearly and distinctly establishes that, at the time of the execution and attestation of the will, the second clause thereof read: " Second, I give and bequeath, subject to said life estate, to Mrs. Lillian Roome and Miss May A. Husted, of Washington, D.C., each, the sum of five thousand (5,000) dollars;" and that thereafter the testatrix altered such second clause by erasing the words "and Miss May A. Husted" and the word "each."
The testatrix could not, by such erasure, alter her will. It is provided by 2 Revised Statutes, chapter 6, title 1, section 42, that "No will in writing, 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." The effect of this statutory provision is to prevent a testator from altering his will, otherwise than by an instrument executed in the same manner as required to give it effect as a will. The statute has surrounded the execution of testamentary instruments with certain forms and ceremonies as a shield and protection against fraud and imposition; and the purpose of such precautionary measures might be entirely defeated, if held only to the original execution, leaving all subsequent alterations to be made without such protection. The aim of the statute is to close the door against opportunities of fraud and alterations in a will, except by the observance of the same formalities as in its execution.
In Lovell v. Quitman, 88 N.Y. 377, it appears that, after the will was executed, the testatrix obliterated clauses numbered "2nd" and "4th" with intent to revoke the same. Held, that the obliteration was not effectual for that purpose, and that the will remained in full force and effect as before. In Quinn v. Quinn, 1 T. C. 437, after the will was executed, the testator made alterations by erasing and interlining. Held, that the testator could not by an erasure partially revoke his will, and that the will should be probated as originally written. In Matter of Stevens' Will, 3 N.Y. 131, the testatrix, after the execution of her will, attempted to alter it by having a bequest written on a separate piece of paper and pasted on the will, cutting the latter in two for that purpose. Held that the attempted bequest was ineffectual, and that the original will was not rendered invalid. In Matter of Carver, 3 Misc. 567, it was held that the effect of an unauthenticated erasure in a will after execution is to render the change sought to be made inoperative, leaving the will to stand in form and effect as before the alteration was attempted. In Matter of Lang, 9 Misc. 521, it was held that alterations and erasures, made after the execution of a will, will not invalidate it if the original intention of the testator can be ascertained. In Matter of Prescott, 4 Redf. 178, it was held that where a testator, after the execution of his will, makes erasures and interlineations therein, without intending to revoke the will, and without re-executing the same, the will must be admitted to probate as originally executed. In Dyer v. Erving, 2 Dem. 160, it was held that, after one has signed and published an instrument as and for his last will, though he may revoke it by destruction, or annul or modify it by another writing executed with due formalities, he cannot otherwise vary its terms, by additions, interlineations, obliterations or erasures on its face. In Matter of Westbrook, 44 Misc. 339, a will, after execution, was altered by cutting out its first subdivision and fastening together the remaining parts; the piece cut out could not be found. The scrivener, who was also one of the subscribing witnesses, testified as to the missing clause, which the court held was sufficient proof of that portion, and admitted the will to probate as originally executed.
It being the duty of the surrogate to admit a will to probate as executed, and to disregard alterations made without formalities prescribed by statute, it necessarily follows that the surrogate has power to take proof of the provisions of the instrument before alteration.
A decree will be entered admitting will to probate as originally written and executed.
Decreed accordingly.