Tearing. A revocation, by the tearing of the will by testator himself, is clearly subject to the rule which requires animus revocandi to be made out.12 The mere fact of a tear or breach in a testamentary writing will otherwise ordinarily be presumed to be accidental.13 In England it has been held that "tearing" includes cutting, and in the 5th edition of Jarman on Wills some nice distinctions are drawn between the acts which do, and those which do not, constitute a revocation by tearing or cutting within their Statute of Wills.14 In this State a slight tearing, if directed to the whole will and animo revocandi, satisfies the statute; but tearing a clause only does not.15 Where a feeble man, intending to destroy his will, tore his will in ten or twelve fragments, it was held a revocation by tearing, although the fragments were susceptible of being, and were, put together again by another without testator's consent.16 Had they been put together with his consent, the English cases hold that animus revocandi was not complete, the intention being altered before destruction actually accomplished.17

Cancellation. Revocation by the cancellation of a will by the testator himself is another of the modes expressly contemplated by this section of the statute.18 Here again animus revocandi must be made out before a revocation by cancellation is established.1o In the determination of a revocation by cancellation, the prior custody of the testamentary instrument is important.20 If the paper is found canceled and in the exclusive custody of the maker of the will, animus revocandi will be more readily presumed from the mere fact of cancellation. But if the paper is not found in the testator's exclusive custody, a mere cancellation unexplained may have no legal significance.22

12 2 Phil. Ev. 197; Bibb v. Thomas, 2 Bl. 1044; Brady v. Cubit, 2 East. 534.

13 Crossman v. Crossman, 95 N. Y. at p. 153; Sweet v. Sweet, 1 Redf. 451, 454; I Jarman on Wills, (6th Am. ed.), 151, 154.

14 See 6th Am. ed. vol. I, p. 149. 15 Matter of Curtis, 135 App. Div. 745. 54 Barb. 274.

16 Sweet v. Sweet, 1 Redf. 451. 17 Giles v. Warren, L. R. 2, P. & D. 401; 3 B. & A. 489.

18 § 34, Decedent Estate Law.

19 Dan v. Brown, 4 Cow. 483; Matter of McKernan, 129 App. Div. 584.

20 See above pp. 133, 245.

21 Clark's Estate, I Tuck, 445; Matter of Brookman, 11 Misc. 675; Matter of Miller, 51 id. 156.

22 Matter of Hopkins, 35 Misc. 702, 73 App. Div. 559, revd., 172 N. Y. 360; s. c., 97 App. Div. 126, 109 id. 86, appeal dismissed, 185 N. Y. 542.

The term cancellation primarily means a crossing out by lines drawn through the writing.23 Where the lines are made lightly in pencil so as to be consistent with an intention to alter the will at a future time, a cancellation is not made out within the statute, as animus revocandi can not be then inferred conclusively.2+ But where animus revocandi is made out,25 a slight cancellation suffices, and ink lines drawn through the signature, or pencil marks with an indorsement by testator to the effect that the will is canceled, have been held sufficient.28

26

27

Under the present statute, there can be no such thing as a partial revocation by the cancellation or other destruction of a particular devise or bequest; the cancellation, in order to constitute a revocation, must go to the entire instrument.29 The separate elements of this section of the statute and of the modifying clauses, showing that a partial revocation by destruction can not now take place, are well considered in the important decision per curiam in Lovell v. Quitman. This decision also gives an interesting account of the modifications made in England and in this State, in the 6th and 22d sections of the original Statute of Frauds, regulating revocation of last wills and testaments." 30

If animus revocandi is not established, the marks on a will, its cancellations and other alterations and substitutions, are without probative force under the present statute, and they are treated

23 Vide sub voce "Cancellare," Latin Thesaurus; Matter of Alger, 38 Misc. 143, 144; Matter of Miller, 50 id. 70, 73.

24 Matter of Raisbeck, 52 Misc. 279.

25 Waterman v. Whitney, 11 N. Y. 157, 161.

26 Dan v. Brown, 4 Cow. 483. Cf. Matter of Raisbeck, 52 Misc. 279.

27 Matter of Phelps' Will, 19 N. Y. Supp. 13; Matter of Brookman, II Misc. 675, 676; Clark's Estate, I Tuck. 445.

28 Matter of Alger, 38 Misc. 143. Cf. Matter of Raisbeck, 52 id. 279. 29 Lovell v. Quitman, 88 N. Y.

V.

377 (overruling McPherson Clark, 3 Bradf. 92); Matter of Prescott, 4 Redf. 178; Clark v. Smith, 34 Barb. 140; Quinn V. Quinn, T. & C. 437; Gugel v. Vollmer, 1 Dem. 484; Dyer v. Erving, 2 id. 160.

30 Lovell v. Quitman, 88 N. Y. 377, 380; and see 1 Jarman on Wills (4) ed.) 133 seq.; Matter of Curtis, 135 App. Div. 745. The slight but important verbal changes in the Statute of Frauds in England and this State, relative to revocation, fully noticed in Lovell v. Quitman, were overlooked in Simmons v. Simmons, 26 Barb. 68, 74.

as merely inchoate, or as evidence of some intention to alter the will in a legal way at some future day. Such a will is probated in so far as it complies with the statute, and no farther. Consequently, the alterations contemplated are to be ignored. There is ordinarily no presumption, in the absence of fraudulent or suspicious circumstances, that an interlineation or other verbal change was made after the execution of a will. On the contrary, the presumption is the other way.32

Obliteration. The sixth section of the original Statute of Frauds,33 regulating the express revocation of devises, makes obliteration one mode of revocation. The acts "to reduce the laws concerning wills into one statute," passed in 1787, 1801 and 1813, as well as the Revised Statutes and this section of our present "Wills Act," all specify obliteration as one mode of express revocation of testamentary instruments.34 Obliteration is there specified as a mode of revocation, obviously differing in some degree from a destruction by burning or cancellation, and yet the significance of oblitero in Latin, from which obliteration is derived, is a "cancellation" as well as a "blotting out." Doubtless all these words of the statute (burnt, torn, canceled, etc.) are ejusdem generis and mere variations of the larger and more comprehensive term "destruction." Obliteration, as contrasted with cancellation, was intended to signify the physical expunging, or the blotting out or effacement, of the text of the testament; whereas cancellation signified primarily a crossing out of the text.35 Thus, taking out the text of the will by an acid, or by pasting a blank paper over the text, is doubtless an obliteration37 within the mean

31 Gugel v. Volmer, 1 Dem. 484; Matter of Ackerman, 129 App. Div. 584, and cases cited; Matter of Johnson, 60 Misc. 277; Matter of Kissam, 59 id. 307; Matter of Akers, 74 App. Div. 461, affd., 173 N. Y. 620; Matter of Curtis, 135 App. Div. 747.

32 Crossman v. Crossman, 95 N. Y. 145; Matter of Conway, 124 id. at p. 466; Matter of Gibson, 128 id. 769, 771.

36

33 29 Car. II, chap. 3, amended 9 Car. II, chaps. 26, 36; Lovell v. Quitman, 88 N. Y. at p. 380.

34 1 J. & V. 278; 1 Gr. 386; 1 K. & R. 178; 1 R. L. 364; 2 R. S. 64, 842; 8 34, Decedent Estate Law. 35 Vid., Cancello, Latin Thesaurus; Matter of Alger, 38 Misc. 143, 144; Matter of Miller, 50 id. 70, 73. 36 Schouler on Wills, § 384.

37 Re Hosford, L. R. 3 P. & D.

211.

ing of the statute, if done animo revocandi. But no partial revocation, whether by obliteration, cancellation, or other mode of destruction, is now possible in this State.38

Destruction. The Revised Statutes first inserted the word "destroyed" in the section of the Wills Act governing express revocations.39 Seven years later, the new English Wills Act (§ 20, 1 Vict., chap. 26) employed the same term for a like purpose, however, omitting cancellation and obliteration as too vague or loose methods of revocation. The words "otherwise destroying" in the English act have since received much judicial consideration.40

In section 34 of the Decedent Estate Law, the word "destroyed" is doubtless cumulative, and it is to be taken to mean a destruction ejusdem generis as those mentioned before, but one possibly more complete in kind." A human destruction of a will, in any way soever, must in order to constitute a revocation, be done animo revocandi, or else it is a nullity, and the will may be otherwise established.42

43

Revocation of Conjoint or Mutual Wills. We have seen that conjoint or mutual wills are valid. Conjoint or mutual wills may be revoked by the parties thereto, but only in the manner provided for by the statute. It is not the law of this State that such revocation requires consent of all the conjoints.45

44

Revocation of Wills Executed in Duplicate or Parts. Where a will is executed in duplicate or triplicate, it is not necessary that both or all parts be probated. But both or all should be produced, for a revocation of one part is a revocation of all.**

38 Gugel v. Vollmer, 1 Dem. 484; Lovell v. Quitman, 88 N. Y. 377; Matter of Prescott, 4 Redf. 178; Quinn v. Quinn, 1 T. & C. 437.

39 See p. 246, supra; 2 R. S. 64,

§ 42.

40 See 1 Jarman on Wills (6th Am. ed.) 150.

41 Matter of Hughes, 61 Misc. at p. 210.

42 Matter of De Groot, 18 Civ. Pro. Rep. 102. 9 N. Y. Supp. 471; Matter of Hughes, 61 Misc. 207.

43 Supra, p. 136.

44 Ex parte Day, 1 Bradf. 476; Edson v. Parsons, 85 Hun, 263; Matter of Goldsticker, 123 App. Div. 474, affd., 192 N. Y. 35.

45 Id. supra; Matter of Keep, 2 N. Y. Supp. 750, 17 St. Rep. 811.

46 Crossman v. Crossman, 95 N. Y. 145; Asinari v. Bangs, 3 Dem. 385.

Revocation Through Destruction by Another Than Testator. Whenever a will is burnt, torn, canceled, obliterated or destroyed by another than testator himself, it must be so done in his presence. Such fact, and the direction and consent of testator, must be proved by at least two witnesses. Otherwise the destruction is wholly ineffectual as a revocation."

48

Presumptions Concerning Destruction. Proof that a will was duly executed and was in existence a short time before testator's death does not, where the will can not be found after such death, raise a presumption that it continued in existence, or was fraudulently destroyed in the testator's lifetime. Proof that the will was not found after testator's death is presumptive evidence, sufficient to establish prima facie that the testator himself destroyed it animo revocandi; and he who seeks to establish the will as lost. or fraudulently destroyed assumes the burden of overcoming this presumption by adequate proof.19 The presumption indicated may be rebutted. Thus where a will has been lost or destroyed, under circumstances showing that it has not been lost or destroyed with the knowledge or consent of the testator, the fact of its existence at the death of testator may be proved by circumstantial evidence."

There is a great difference in procedure on a will which is wholly lost or destroyed, and on a will where the attempted revocation is a nullity.51

A Lost or Destroyed Will. Where a will has been duly executed, and has afterward been lost or destroyed by accident or design before probate and record within this State, any person

478 34, Decedent Estate Law; Matter of Hughes, 61 Misc. 207.

48 Matter of De Groot, 18 Civ. Pro. Rep. 102; Matter of Evans, 113 App. Div. 373; Matter of Hughes, 61 Misc. 207.

49 Collyer v. Collyer, 110 N. Y. 481; Matter of Kennedy, 167 id. 163; Buckley v. Redmond, 2 Bradf. 281; Matter of Nichols, 40 Hun,

387. Cf. Jackson v. Betts, 9 Cow. 208, 6 Wend. 173.

50 Idley v. Bowen, 11 Wend. 227; Schultz v. Schultz, 35 N. Y. 653.

51 Bulkley v. Bemond, 2 Bradf. 281; 2621, Code Civ. Pro.; Gugel v. Vollmer, 1 Dem. 484; Matter of Hughes, 61 Misc. p. 209; Matter of De Groot, 18 Civ. Pro. Rep. 102.