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interested in the establishment thereof may have his action in the Supreme Court to establish such will.52 But the plaintiff is not entitled to such judgment unless the will was in existence at testator's death or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.53

A Revoked Will May be Republished. A revoked will may be republished, 54 but if duly revoked may be republished only provided all the formalities required for an original execution of a will are complied with.55 Interesting questions often arise on a republication of a will, whether such republication be express or by virtue of some codicil. But a republication will not revive a satisfied legacy.56

All Implied or Constructive Revocations Abrogated. This section on its face extends only to express revocations. But it is broad enough in terms to abolish all presumptive or implied revocations, other than those expressly excepted by this chapter. The accuracy of this conclusion, however, depends on the construction given to the words “ hereinafter mentioned.” If these words are limited to the instances mentioned in this section, all implied revocations of prior wills are not abolished by statute. If, on the other hand, such words extend to the chapter, all implied revocations of wills, except those specially stated in the chapter, are abrogated. And such is the construction generally accorded. 57

Cf. In re Johnston, 69 Hun, 157, 52
St. Rep. 533; Matter of Trost, 38

Misc. 404.

52 § 1861, Code Civ. Pro.; Matter of Reiffeld, 36 Misc. 472.

53 § 1865, Code Civ. Pro.

54 Matter of Knapp, 51 St. Rep. 517, s. C., 23 N. Y. Supp. 282; $ 41, Decedent Estate Law, and see Note 19, Appendix II, infra.

55 $ 41, Decedent Estate Law; Matter of Stickney, 161 N. Y. 42; In re Forbes, 24 N. Y. Supp. 841.

56 Langdon v. Astors' Executors, 16 N. Y. 9, 57.

57 Langdon v. Astors' Executors, 16 N. Y. 9, 39; Delafield v. Parish, 25 id. 9, 99; Matter of Davis, 105 App. Div. 221, 228, affd., 182 N. Y.

468.

§ 35. Revocation by marriage and birth of issue. If after

the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation, shall be received.

Formerly 2 R. S. 64, § 43:

$ 43. If after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his life-time or after his death, and the wife or issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation, shall be received.57a

Comment. The preceding section of this act relates to express revocations. This section is the first of a series of sections of the statute dealing with the former law of implied revocations of wills, as that law stood prior to the Revised Statutes. The revisers of the Revised Statutes intended to reform the entire law of implied revocations of wills, as they regarded it as wholly unsatisfactory.58 They consequently gave much attention, as appears by their notes, to the sections of the statute regulating revocations of wills. The present statute merely re-enacts the Revised Statutes and now regulates revocation of testamentary instruments, the former doctrines of presumptive or implied revocation having been fully considered and codified in the Revised Statutes or else swept away."

57a Repealed 8 130, Decedent Estate Law.

68 See their notes 15, 18, Appendix II, infra.

The Old Law. The Statute of Frauds and its re-enactment in this State in the old Statute of Wills had not taken away revocations of wills by what were termed “ acts in law,” 60 and an alteration in testator's circumstances, such as his subsequent marriage and birth of issue, was a presumptive revocation of a will, disposing of the whole estate, made in a state of celibacy.81 Unless the will disposed of the whole estate, Lord Mansfield said that in his recollection there was no case in which marriage and birth of a child were held to raise an implied revocation.62

This rule stated above, concerning revocation by marriage and issue, was first applied to wills of personalty, but was soon followed in respect of devises. But where the will was in favor of children of a first marriage, a second marriage and birth of issue revoked the will as to personalty, but not as to realty, for that would have been to let in the heir to the whole estate.6 Where the wife and children were otherwise provided for, either by the will itself or by a marriage settlement, or where the will did not dispose of the whole estate, subsequent marriage and birth of issue were not a presumptive revocation. Nor was marriage alone, or a subsequent birth of issue, sufficient to cause a presumption of revocation to arise. Both facts must concur.66 Whether subsequent birth of issue by first venter, followed by a second marriage without issue, came within the rule was doubtful.

64

59 § 34, Decedent Estate Law; Langdon v. Astor's Executors, 3 Duer, 477, 558, 16 N. Y. 9, 39; Delafield v. Parish, 25 N. Y. 9, 99; Matter of Davis, 105 App. Div. 221, 228, affd., 182 N. Y. 468.

60 Lovelass on Wills (ed. of 1839) 351; Dan v. Brown, 2 Cow. 488, brief of counsel; Brush v. Wilkins, 4 Johns. Ch. 506, 509.

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61 Lovelasson Wills, 351; Brush v. Wilkins, 4 Johns. Ch. 506; Havens et ux. V. Van Den Burgh, I

Den. 27.

So there was much uncertainty whether parol evidence of testator's intention could be received.67

Whether the rule indicated was grounded upon a presumed alteration of intention, as it has been frequently laid down, or upon a tacit condition annexed to the will itself, that it is not to operate in such a change of circumstances, as maintained by Lord Keyon in Doe v. Lancashire,68 was undecided.

It was held, after some fluctuation of opinion, that if the child or children whose birth had revoked, or contributed to revoke, the will died in the lifetime of the testator this event would not restore efficacy to the revoked will. Yet the absurdity of declaring a will revoked by subsequent marriage and birth of issue, when wife and issue die without other issue before testator is apparent, if we remember that originally such marriage and subsequent issue were only a constructive or presumptive revocation.

70

The Revised Statutes. Such were some of the inconsistencies and uncertainties in the state of the law governing constructive or implied revocations by subsequent marriage and birth of issue when the revisers came to frame this section of the Revised Statutes." The revisers say in their note that there has been much litigation, and there still is much uncertainty in regard to some of the qualifications of the rule.” 71 These uncertainties and inconsistencies we have alluded to above under this section. The statute required (1) the wife or issue to survive the husband, in order that subsequent marriage and birth of issue should operate as a revocation. (2) It required, as formerly, that the issue should be unprovided for by any settlement, or in the will itself. (3) It regulated the evidence of intention to revoke the prior will.73

67 See Lovelass on Wills, pp. 365, 366; 4 Kent Comm. 521-524; Havens et ux. v. Van Den Burgh, i Den. 27.

68 5 T. R. 49; see also W. Jarman's very valuable note to i Powell on Devises, 531.

69 I Jarman on Wills, 112 (ist ed.), citing Burrow v. Baxter, Amb. 490; Hellyer v. Hellyer, cit. i Phill. 412; Sullivan v. Sullivan, cit. I id.

343; Emerson v. Bovil, i id. 342; Walton v. Walton, 7 Johns. Ch. 258.

70 2 R. S. 64, § 43, now $ 35, Decedent Estate Law.

71 See Revisers' Note 14, Appendix II, infra.

72 Supra, p. 262.

73 2 R. S. 64, § 43, now $ 35, Decedent Estate Law; Matter of Rossignot, 50 Misc. 231.

The statute settled the law as to the reception of oral evidence to rebut the implied revocation. Now, as formerly, if the issue so subsequently born are provided for by some settlement, or are mentioned in some prospective provision of the will itself, a subsequent marriage and birth of issue and their survival of the father does not operate as a revocation of the father's prior will.74 But no other evidence to rebut the conclusive presumption of a revocation of a prior will by a subsequent marriage and birth of issue is now allowed.15 The section applies only to marriage of the father, but it applies to subsequent marriages of widowers as well as of bachelors.76

Both a subsequent marriage and subsequent birth of surviving issue must concur in order to make this section available to such issue. If the marriage is before the making of the will and the birth of issue subsequent thereto, this section has no application. The case then falls within the purview of section 26 of this act." The rule stated in this section applies even where the marriage and birth of issue follow a long meretricious relation.78

77

74 See the authorities cited under $ 26, Decedent Estate Law, pp. 216221, supra; as they are equally relevant to this section, and Matter of Lally, 136 App. Div. 781.

75 g 35, Decedent Estate Law, Adams v. Winne, 7 Paige, 97; Matter of Rossignot, 50 Misc. 231.

76 Havens v. Van Den Burgh, i

77 § 26, Decedent Estate Law, Matter of Gall, 5 Den. 374, 31 St. Rep. 954, 9 N. Y. Supp. 466; affd., 10 N. Y. Supp. 661, S. C., 32 St. Rep. 695.

78 Matter of Gall, id. supra; Matter of Del Genovese, id. supra.

Den. 27.

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