Opinion
June Term, 1898.
F.W. Ballard, for the appellants.
Eugene W. Harrington, for the respondent.
The question presented by this appeal is whether a will expressly revoked by the terms of a subsequent one, duly executed, but destroyed by the testator, is republished and becomes a valid will by the testator's declaration to persons not the subscribing witnesses to it and who do not subscribe it as witnesses, that he desires the first will to stand as his last will, and that it is his last will.
The diligence of the learned surrogate and of the counsel for the litigants has failed to find a case in this State since the adoption of the Revised Statutes determining this question, and I have failed to find one.
The following are the sections of the statute of this State relating to the execution, revocation and republishing of wills, which sections remain as they were reported in 1828 by the revisers, and enacted as part of the Revised Statutes of this State. (See R.S. pt. 2, chap. 6, tit. 1; 2 R.S. [1st ed.] 63, 64, 66; 2 id. [9th ed.] 1877, 1878, 1880.)
"§ 40. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
"1. It shall be subscribed by the testator at the end of the will;
"2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses;
"3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament;
"4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. * * *
"§ 42. No will in writing, except in the cases hereinafter 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, canceled, 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. * * *
"§ 53. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, canceling 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, canceling or revocation, he shall duly republish his first will."
The learned surrogate in his opinion demonstrates by the most satisfactory reasons that the word "publication," when used in connection with the execution of wills, denotes the act prescribed by the 3d subdivision of section 40 above quoted, which conclusion he amply supports by reference to the following cases: Brinckerhoof v. Remsen (8 Paige, 488); Lewis v. Lewis ( 11 N.Y. 220); Trustees of Auburn Seminary v. Calhoun (25 id. 422); Tarrant v. Ware (Id. 425, n); Baskin v. Baskin (36 id. 416); Matter of Phillips (98 id. 267); Nipper v. Groesbeck (22 Barb. 670). In all of these cases, however, the courts were speaking of the publication or declaration made by testators to persons who became subscribing witnesses to the wills, and not in reference to publications or declarations made by testators to persons who did not become subscribing witnesses to the wills.
I apprehend that if a testator should declare, publish or acknowledge to all the world, except to the subscribing witnesses, that a particular instrument was his last will and testament, and should neglect so to declare, acknowledge or publish to the persons who became the subscribing witnesses, the will would not be well executed within the statute. The testator must not only publish or declare the instrument to be his last will, but it must be declared to the persons who become the subscribing witnesses thereto. The word "republish" means to publish again that which has been before published, and, as used in the 53d section of the statute, denotes that the act must be done in the same manner and be authenticated in the same way as required by section 40 — that is, it must be declared to be the last will of the testator, in the presence of persons who then become subscribing witnesses to the republished will, and so attest the fact, or, perhaps, if it is republished in the presence of the original subscribing witnesses it may not be necessary for them to subscribe the will anew as witnesses, for the rewriting of their signatures would seem to be a useless formality. But the mere acknowledgment or publication by a testator of a will which has been revoked to persons who were not the original subscribing witnesses, and who do not then subscribe as witnesses the republished will, is not a compliance with the 53d section of the statute.
In Jackson v. Potter (9 Johns. 312) the testator (James Rogers), after making several specific devises, devised the remainder of his realty to two of his sons. Subsequently he acquired 100 acres of land, and afterwards inclosed his will in a letter to Susannah Case, writing her as follows:
"Mrs. CASE. Enclosed is my will which you are requested to keep, and when it becomes proper to open the same it must be done in the presence of two of the executors and eight other persons.
"JAMES ROGERS."
The letter and the will were delivered to Mrs. Case, who retained them. After this the testator told one of the executors named in the will, "I have made my will and deposited it with Susannah Case, and have appointed you one of my executors and wish you to accept the trust. You will find inclosed in the will a memorandum in writing directing the manner of proceeding." The testator also said in his last sickness that he had made a disposition of all his estate by will and had deposited the will with Susannah Case. This will was executed in 1805 and the testator died in 1810, long before the adoption of the Revised Statutes, and when a will did not carry subsequently-acquired real estate. The residuary devisees claimed the 100-acre farm acquired after the execution of the will, asserting that the three declarations made by the testator after he acquired the farm amounted to a republication of the will. But it was held not to be a valid republication, the court saying: "And it is equally well settled that the republication of the will, so as to affect the after-acquired lands, must be made with like solemnity as the execution of the original will." Since the adoption of the Revised Statutes the question as to how a revoked will must be republished in order to re-establish it has not been passed on in any case where the question was necessarily involved, but dicta in respect to the question are found in several reported cases.
In Simmons v. Simmons (26 Barb. 68) the court said: "Here, by legislative and simultaneous construction, a second will, `duly made and executed' (without any clause declaring the former one revoked), is shown to have put the first so utterly out of vital existence that it needs either republication (tantamount to an entirely new execution) or an express revivor by the terms of the writing revoking the second."
This judgment was reversed (24 How. Pr. 611), but the grounds of reversal are not disclosed, as the opinion of the Court of Appeals has not been reported.
In In re Forbes' Will (24 N.Y. Supp. 841) the testator made two wills, but the last one was not found. In speaking of the effect of the last will upon the first the surrogate said that the first will was revoked by the latter and had no legal existence, and that it required a republication executed with all the solemnities and exactness required by law to bring it into existence.
In Proctor v. Clarke (3 Redf. 445) the surrogate held that a will executed by an unmarried woman, which was revoked by her subsequent marriage, was not revived by a codicil duly executed after her marriage, and it was said that "to re-establish the instrument of August 25th, 1873, as a will, there must be a re-execution or a new execution of it. The same formalities must be complied with as in the first instance." This case was reversed (16 Hun, 559) and the judgment of the General Term affirmed by the Court of Appeals ( 77 N.Y. 369), where it was held that the execution of a codicil recognizes the validity of a revoked will and operates as a republication and re-establishment of the will.
In The Matter of Simpson (56 How. Pr. 125) the surrogate of Delaware county said, by way of argument, that a revoked will might be republished by the parol declaration of the testator that it was his will, made in the presence of two witnesses who were not witnesses to the original will and who did not subscribe the will as witnesses when the declaration was made. The surrogate had held that the original will had not been revoked, and the remark referred to was obiter.
The cases referred to which have arisen since the Revised Statutes cannot be regarded as authorities, but simply as expressions of the views of individual judges upon the question. Many cases have arisen in England and in several of the United States, but under statutes different from our own, and it is necessary to say only that there is a general agreement that the act of republishing a revoked will must be attended by the same solemnities as are required to establish an original will. In case a parol declaration, made to persons who do not become subscribing witnesses, is sufficient to establish the due execution of a will, a like declaration is sufficient to establish a republication of a revoked will. But in jurisdictions where the will must be published to persons who subscribe as witnesses, the same formalities are required to republish a revoked will. The design of the statute prescribing that certain formalities shall be observed in the execution of wills, was for the prevention of frauds in the dispositions of estates by will; and I think no good reason can be given why the same formalities should not be required for the republication of a revoked will, as the opportunities for fraud are the same in both cases.
The decree of the Surrogate's Court should be reversed, with costs, and that court directed to enter a decree refusing to probate the will.
All concurred, except ADAMS, J., dissenting.
Decree of the Surrogate's Court reversed, with costs to the appellants payable out of the estate, and the Surrogate's Court directed to enter a decree refusing the probate of the will.