In re the Probate of the Last Will & Testament of Fox

Slater, S.

The will of the decedent has been mutilated by cutting out the 2d and 3d paragraphs. In the 4th paragraph the name of the sister and the place of her residence have been cut out, and the name of another sister was typewritten upon a piece of paper with a different color type ribbon, and the part so typed pasted on the reverse side of the page. The 7th paragraph relating to the appointment of executors was also mutilated by cutting out the name of one of the executors and appointing a sister by the same process as indicated with reference to the 4th paragraph. One of the subscribing witnesses, the lawyer who drafted the will, is dead The other subscribing witness was a stenographer in the office of the attorney and her testimony is to the effect that when the will was executed by the decedent there was no mutilation to said will as herein referred to. The will was found among the personal belongings of the decedent.

The law of the case is that erasures, interlineations, mutilations and additions made to a will after its execution do not change the will, unless made with all the formalities necessary to a will, but the will has to be probated as though they had not been made. The will as originally executed was never revoked and is still the will of the decedent. Matter of Stevens Will, 3 N. Y. Supp. 131 ; S. C., Stevens v. Stevens, 6 Dem. 262 . The contents of the missing parts of the will have not been legally proven in this proceeding. If so, it would have been admitted to probate in its entirety. Even the substance of the missing portion has not been proved, and the paper which remains must be admitted to probate, because what is left is still her will and it has never been revoked. Matter of Ackerman, 129 App. Div. 584 ; Matter of Kent, 169 id. 388; Matter of Van Woert, 147 id. 483.

I shall construe the will as follows: The 2d and 3d paragraphs are void. The 4th paragraph is void. The 7th paragraph, which relates to the appointment of executors, is void in so far as it appoints *354 Lizzie C. Douglas an executrix. Frederick C. Train, another named executor, is dead. Letters c. t. a. may issue upon proper application. The remaining portion of the 7th clause which relates to the power of sale is effectual.

Decreed accordingly.