#### Matter of the Estate of Luania Cardot Ackels, Deceased.

(Surrogate’s Court, Chautauqua County,

April, 1898.)

Probate —■ A will cut in two parts, but by some one other than the testatrix — Revocation — Implied revocation.

The proponent of an alleged will presented for probate two separate sheets of paper, formerly constituting one sheet of legal cap, one of which contained the disposing part of a will and the other the signature of the testatrix and the attestation clause. Proof was made *322that the will was duly executed 'and no direct proof was given as to how the sheets became separated, A son of the scrivener of the will testified that, in his father’s lifetime, he saw the sheet which contained the disposing part in his father’s desk but that he did not see the other sheet. After the death of his father, and One year after the death of the testatrix, both parts were found in the desk and also a paper written by the scrivener and signed, but not executed in the manner required for the revocation of a will, by the testatrix, which purported to be her requests as to the disposition of her. property after her death and which contained the recital, “ Bequests of Luania Cardot Ackels (the testatrix), for the division of her property, having given it all to Marvin and Frank Cardot.” Slight additional evidence . was "given that she had disposed of all her property in her lifetime.

Held, that the sheets were entitled to probate as a will.

That there was no proof that the testatrix had revoked the will by cutting it apart herself, nor was there any by witnesses who saw' such a revocation made, by a third person at the request of the testatrix.

That no revocation was to be implied from the alleged disposition by the testatrix of all her property in her lifetime, as this was not sufficiently proved, and, even if - proved, should .not prevent the beneficiary from proving the will, to the end that its effect might be there- • after determined.

This is an appEcation for.the probate of an] instrument, purporting to be the last will and testament of Luania Cardot Ackels, deceased. • ■ •

The issue-in the proceeding is whether the will had been revoked by the testatrix before her death. The facts as wé deem them established by the evidence, so far as material, are stated in the opinion.

Hooker *&*Dikeman, for proponent.

Ottoway *&*Munson, for contestant.

Woodbury, S.

The proponent presents two papers which together constitute, as she claims, the last will and testament of the deceased. The. two papers malee and constitute one full sheet of, legal cap paper. At one time these papers were one complete " instrument -and when so complete was the last will and testament of the deceased, properly executed, and was the free and voluntary act of a competent testatrix. These papers have been marked-*323respectively Exhibits “ A ” and “ B.” Exhibit “ A ” is the disposing part of the will, and Exhibit “ B ” contains the signature of the testatrix, the seal, the attestation clause, and the signatures of the witnesses. Exhibit “ B ” was cut from Exhibit “ A.” We . are thus to determine whether the instrument which once constituted the will of this decedent has been canceled and revoked by the cutting off of the signature, attestation clause and signatures of the witnesses. This is the sole question in the case and must be determined from the evidence and circumstances adduced upon the healing. This evidence is meagre- and unsatisfactory and the disposition of the question must depend largely upon presumptions.

John 0.. Griswold, a resident of the town of Arkwright, -in this county, was sent-for by the testatrix to prepare and superintend the execution of her will. . He went to her residence pursuant to such request and prepared and superintended the execution of the instrument formed by the component parts, Exhibits “ A ” and *“*B.” Mr. Griswold was a man who frequently prepared wills and other papers for his neighbors and friends in the community of his residence and was in the habit of taking charge- of such instruments and . papers for safe-keeping. It does hot appear what was done with the will in question after its execution; whether it was taken by Mr. Griswold for safe-keeping or was retained by the testatrix. The first we learn- of the whereabouts of the will, after its execution, is in the possession of Mr. Griswold about one! year after the decease of the testatrix. It is then found at his residence, in a desk in which he kept papers and legal documents, by Cassius M. Griswold, his son, and when so found it had been cut in two, Exhibit *“*B ” having been cut off and severed from Exhibit *“*A,” the remainder of the instrument. John 0. Griswold died subsequent to this incident and the two- parts of the will afterwards passed into the possession of the son Cassius, and from his'possession were traced to this court-in a proper manner. Cassius M. Griswold testifies- that, at the time he saw the will in his father’s desk during the lifetime of the latter, he did not find Exhibit “ B ” ■ with the other part- of the will, but only -found that part of the instrument marked Exhibit “A,” which is the disposing part thereof. In view of the fact that, at a -time- subsequent to the death of John 0. Griswold and when the desk in which his papers were kept passed into the custody o-f Cassius, Exhibit *“*B ” was found in the desk with the other part of the will, we think we are not justified in finding or presuming that this part of the will *324had. been taken'away by the testatrix in her lifetime, with intent to revoke the will, and after her death had been surreptitiously *v&*turned, but that it must have been in-said desk at the time Cassius saw the other part of it therein. He does not testify that he examined all of the papers in the desk at that time or that Exhibit “ B ” was not therein. All he says is that he did not see it at that time. There is .slight circumstantial evidence in the case that the testatrix disposed of her property in her lifetime, and a paper has been produced in' evidence which purports to'be the requests of the testatrix with respect to the disposition of her property after her decease; which contains'the following recital: “Requests of Euania Gardot Ackels for the division of her property, 'having-given it all to Marvin and Frank Gardot.” This paper is in the handwriting of John 0. Griswold and signed by the¡ testatrix. It bears no daté, is unattested and there is no direct evidence tend ing to show the time of its execution. The first we learn, and the only evidence .we have concerning it, is that it was found by Cassius M. Griswold-in his father’s desk with Exhibit “ A ” at the same time that he found the latter instrument there one year after the death of. the testatrix.

In view of the fact that the will, as orignally executed, contained a detailed disposition of all the property - of the testatrix, it may be fairly assumed that this instrument was executed after the execution of the will. This brings us to the consideration of legal principles' governing the revocation of wills. The statute (2 R. S., chap. 6, tit.-1, § 42) _ prescribes the manner in which a will once duly executed may be revoked and precludes any other mode of affecting such revocation. It reads as follows: - “Ho- 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 burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revolting the-same, by the testator himself or by any other 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.”

It is conceded that the instrument, purporting to be the requests of the testatrix, does not operate as a revocation of the will by *325reason of the fact that'it was not “ executed with the same formalities with which the will itself was required by law to be executed.” But it is claimed that it was revoked, first, because it was cut in two and canceled with the intent and for the purpose of revoking the same, and, second, that the testatrix, having disposed of all of her property in her lifetime, such act operated as an implied revocation of all wills previously executed'. To eflect the revocation of a will by cancellation, as in this case, two' things must concur, namely, the actual cutting in two, and that such act be done with intent to effect the revocation. The one thing, the act which is to be done, is prescribed by the statute referred to. It must be done by the testatrix herself or by some third person in her presence and in the presence ¡of two witnesses by whom such act is to be proved. In our opinion we are not to presume that the act of cutting, in this case, was done by the testatrix herself. We think it cannot be presumed that, having the instrument in her possession, she would cut it in two with an intent to revoke and destroy it and thereafter take the separate part's and place them in the 'custody of Mr. Griswold. But, upon the contrary, from the circumstances in the case we are to presume that the will, at the time of its execution, was placed by the testatrix in the hands of Mr. Griswold for safe-keeping and that he had the custody and possession thereof during the whole period of timel from its execution until it was seen by his son after the death of the testatrix. We, therefore, conclude that the physical act of cutting and destruction wasi not done by the testatrix. It may not be presumed upon the other hand that Mr. Griswold having the custody of this paper would cut it in two, or otherwise mutilate or destroy it except by the direction or request of the testatrix, and whatever presumption may arise that the act of cutting was performed by Mr. Gris-wold must be coupled with the further presumption, that if he did it, it was by the direction and the consent of the testatrix; and assuming such to' have been the case, or that the cutting was done by some person other than Mr. Griswold by the direction and consent of the testatrix, such act would not operate as a. revocation of the will, because no witnesses were present to prove or attest it.

We are now brought to the final contention in the case that the will was impliedly revoked by the disposition of all the property of the testatrix in her lifetime. We are not prepared to yield to this contention. First, because we are not satisfied from the evidence, and cannot find, as a fact, that the testatrix did dispose of all *326of her property after the making of the will, and prior to her death; and, secondly, because if she- had done so, in our opinion, that should not defeat the probate of the' will. Such act on her part may well operate to prevent the beneficiary from enjoying the fruits, of beneficence as stated in the will, yet it does not follow of necessity that it would work a complete revocation of the will; and we think the will in such a case should be- admitted to probate, leaving its effect to be determined .when the legatee or devisee prefers Ms claim. We reach the conclusion that there was m> valid revocation of the will in question, arid that the instruments Exhibit “A” arid “33 *”*should be admitted to probate as and for the last, will.and testament of the testatrix. ■■

A- decree will enter admitting such instrument to’ probate,

Decreed accordingly,-