Collyer v. Collyer
| Decision Date | 02 October 1888 |
| Citation | 110 N.Y. 481,18 N.E. 110 |
| Parties | COLLYER v. COLLYER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Petition by George B. Collyer, filed before the surrogate of Westchester county, against Charles S. Collyer, administrator, and others, heirs and distributees of Elizabeth Collyer, deceased, offering for probate the alleged last will of deceased. The surrogate refused probate, and, upon appeal, the general term affirmed the judgment. The proponent again appeals.
Dennis McMahon, for appellant.
Seaman Miller and A. Britton Havens, for respondents.
Elizabeth Collyer died in Westchester county on the 4th day of March, 1883, possessed of a considerable estate. George B. Collyer, claiming that she had made a will devising and bequeathing all her estate to him, and appointing him the sole executor thereof, and alleging that the will had been fraudulently destroyed, instituted this proceeding in the surrogate's court, under section 2621 of the Code, to establish the will. The administrator and next of kin and heirs of the deceased were made parties to the proceeding, and they opposed and contested probate of the will. The petitioner, George B. Collyer, gave evidence tending to show that, in 1863, the deceased made such a will as he claims; that she left the will in the custody of the lawyer who drew it until about the year 1877, when she took the will into her own possession, and soon thereafter exhibited a folded paper, which she claimed was her will. Witnesses were called on behalf of the petitioner, who testified to declarations made by the deceased at various times, but not later than seven months prior to her decease, to the effect that she had made a will giving all of her estate to her brother George; and witneses were called on behalf of the contestants who testified to declarations made by her in the years 1882 and 1883, the last in February of the latter year, to the effect that she was displeased with the treatment received by her from her brother George; that she had changed her intention in reference to him, and had destroyed her will. Upon all the evidence the surrogate found, as matter of fact, that there was a want of sufficient legal proof that the deceased ever executed a will; that there was a want of sufficient legal proof of the contents of any will; that at the time of her death she left no will in existence, and that no will of hers was fraudulently destroyed in her life-time; and he held, as matter of law, that the alleged will should not be established or admitted to probate as a lost or destroyed will; and that the deceased died intestate. The decision of the surrogate was affirmed at the general term upon the ground, as appears from the opinion there pronounced, that there was not sufficient proof that the alleged will was in existence at the time of the decease of Mrs. Collyer, or that it was fraudulently destroyed in her life-time.
Without passing upon the other grounds upon which the surrogate based his decision, we agree with the general term. It is provided in the Revised Statutes (2 Rev. St. pt. 2, c. 6, tit. 1, art. 3, § 42) as follows: ‘No will, except in the cases hereinafter mentioned, nor any part, 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 or 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.’ The claim of the petitioner is that the will of Mrs. Collyer was not destroyed by herself, but by some other person, without her knowledge or consent. This claim is wholly unsupported by proof. No witness was called who had...
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