Clark v. Smith
New York Supreme Court
ripHE surrogate of Tioga county adjudged and decreed that JL a paper executed by Wait Smith, deceased, was his last will and testament, and that it was duly executed and valid. Also that no part of said will was revoked by the deceased during his lifetime; that the deceased, at the time of executing said will, was in all respects competent to make a last will and testament and to devise real estate, and not under any restraint.
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ripHE surrogate of Tioga county adjudged and decreed that JL a paper executed by Wait Smith, deceased, was his last will and testament, and that it was duly executed and valid. Also that no part of said will was revoked by the deceased during his lifetime; that the deceased, at the time of executing said will, was in all respects competent to make a last will and testament and to devise real estate, and not under any restraint. The surrogate admitted said will to probate, and it was recorded in his office as a will of real and personal estate. Rachel Clark and Clarissa Perry, two of the…
1Opinion of the Court
By the Court, Balcom, P. J.
I think we need not determine whether, if the testator had erased the word son in the second and fourth clauses of his will, only those two clauses or the entire will would have been revoked; and I also think we should not decide whether the surrogate erred in following the dicta of Judge Selden in Waterman v. Whitney, (1 Kern. 159,) in rejecting evidence that the testator admitted he made the marks or erasures in the second and fourth clauses of his will, with the intent and for the purpose of cancelling or revoking those clauses. I have come to the last mentioned *143c…
2Cited by5 opinions
- Woodruff v. HundleySupreme Court of Alabama · 1900
- Warner v. Warner's EstateSupreme Court of Vermont · 1864
- Hoitt v. HoittSupreme Court of New Hampshire · 1885
- In re the Proving the Last Will & Testament of MillerNew York Surrogate's Court · 1906
- Lovell v. QuitmanNew York Supreme Court · 1881