§ 41. Canceling or revocation of second will not to revive first. 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.

Formerly 2 R. S. 66, § 53:

$ 53. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, cancelling 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, cancelling or revocation, he shall duly republish his first will.77

Old Law Before the Revised Statutes. The revisers of the Revised Statutes, in their note to the original of this section, with accustomed thoroughness, showed the precise conditions which they desired to change. That note is so full that little else is necessary to enable the reader to understand the scope of the present section.78

The reader will at this point recall that after the Statute of Wills the common-law courts alone had cognizance of devises. The ecclesiastical courts had complete jurisdiction of testaments, or bequests of personalty. In the common-law courts, a will deliberately and unconditionally canceled, and not prospectively only and in dependence upon the validity of a new testamentary disposition, was not revived by the cancellation of the second will.79 But where a second will was made, the first remaining uncanceled, and afterward the second will was canceled, the first was in force as a good will at the testator's death. But in regard to wills of personalty, in the ecclesiastical courts the prima facie presumption was against

80

77 Repealed, § 130, Decedent Estate Law.

78 See Revisers' Note 19, Appendix II, infra.

79 Burtenshaw v. Gilbert, Comp. 49, cited Lovelass on Wills, 347. 80 Goodright v. Glazier, 4 Burr. 2512.

the revival of the first testament by the cancellation of the second, although such presumption might be rebutted by evidence of circumstances accompanying the destruction of the second, which might give it the effect of restoring the first.81

82

It will also be recalled, that under the old law a codicil was prima facie a republication of a prior will, so as to bring such will down to the date of the codicil, even at a time when after-acquired property did not pass by a prior devise;83 for, prior to the Revised Statutes, a prior devise was only a particular appointment, and could not operate on subsequently acquired real property. The effect of a revocation of a codicil, which revoked a prior devise, has been stated in the preceding paragraphs; for there was no difference in effect between the revocation of a revocatory codicil and the revocation of any other revocatory testamentary instrument.85

The Revised Statutes. The Revised Statutes settled the rule uniformly in all the courts of the State; for at that time the surrogates' courts were inclined generally to follow the rule in the spiritual courts,se while the courts of common law were compelled to follow the rule of the common law by constitutional limitation. Since then, a revocation of a subsequent will or codicil, which had revoked a prior will, never operates to revive such prior will, unless it appears in the act of revocation itself that such was the intention of testator.87 The revisers intended to settle the presumption against the revival of the prior will by the revocation of a revocatory instrument, and to exclude oral evidence to prove such intended revival.88

81 Lovelass on Wills, 347, citing Ex parte Hellier, 3 Atk. 798, 4 Burr. 2513; Moore v. Moore, 1 Phill. 375; Wilson v. Wilson, 3 id. 543.

82 Lovelass on Wills, 373, citing Barnes v. Crowe, 1 Ves. Jr. 486; Williams v. Goodtitle, 10 B. & C. 895; Van Cortlandt v. Kip, 1 Hill, 590; s. c., in error, 7 Hill, 346; Matter of Campbell, 170 N. Y. 84, 86.

83 See under § 11, Decedent Estate Law, p. 66, supra.

Construction of this Section. The present section is a mere re-enactment, totidem verbis, of the Revised Statutes and the construction is the same. At the present day, the revocation of a codicil, or other subsequent will, which had revoked a prior will, does not ipso facto revive such prior will. A late case has settled the law, that where a prior will is revoked by a later, and the later will subsequently destroyed by burning it, the prior will is not revived, even though testator while burning it stated orally in substance to a bystander that he wanted the first will revived.90 On appeal it was distinctly held, that a prior will once revoked could be revived only by a formal republication in conformity with the statute regulating the execution of wills." The decision, exceedingly important as it is and doubtless tending to good results, appears to exceed the reforms contemplated by the revisers in their note to this section.92 The decision in Matter of Stickney excludes any force in the words of the statute "unless it appear by the terms of such revocation that it was his " (testator's) "intention to revive and give effect to his first will." 93 Now when the revocatory instrument is itself destroyed by burning, ordinary oral evidence of the testator's intention to revive his first will, though part of the res gestæ, is excluded, and all the force of the section is to be placed on the last disjunctive sentence relative to republication.94

The decision in Matter of Stickneys does not, however, appear to cover a case where testator's destruction of his later revocatory will is in the presence of the subscribing witnesses to the original will, and testator then states to them while in the act of cancellation, that he wishes such original will revived, but both testator

89 Matter of Goldsticker, 193 N. Y. at p. 37; Matter of Brewster, 72 App. Div. 587; Matter of Cunnion, 135 id. 864. Sed. cf. Matter of Campbell, 160 N. Y. 84, as to a will revived by second codicil which revoked a former codicil revoking the will.

90 Matter of Stickney, 31 App. Div.

91 Matter of Stickney, 161 N. Y. 42; 21, Decedent Estate Law. 92 Revisers' Note 19, Appendix II, infra.

93 See above 8 41.

94 Matter of Brewster, 72 App. Div. 587; Simmons v. Simmons, 26 Barb. 68, 76.

95 161 N. Y. 42.

and the subscribing witnesses fail to re-comply with section 21 of this act. In other words, if the testator does not then re-execute his original will, and the witnesses do not then reattest it in his presence, is the effect of such a declaration of testator to revive the earlier will? 96

96 See Simmons v. Simmons, 26 Barb. at p. 76, to the effect that

a republication is tantamount to a new execution.

§ 42. Record of wills in county clerk's office. A will of real property, which has been, at any time, either before or after this chapter takes effect duly proved in the supreme court, or the court of chancery, or before a surrogate of the state with the certificate of proof thereof annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator, with the will annexed, must cause the same, or an exemplified copy thereof, to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved.

Formerly 2633, Code of Civil Procedure:

§ 2633. A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the state, with the certificate of proof thereof annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor or administrator, with the will annexed, must cause the same, or an exemplified copy thereof, to be so recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or