Vandemark v. Vandemark , 1857 N.Y. App. Div. LEXIS 197 ( 1857 )

By the Court, Harris, J.

The appellant, James Vandemark, presented the will to the surrogate, and was a petitioner for its probate. It is insisted that he cannot appeal from the order made upon his own application. But this objection is untenable. The statute provides that, after any will has been proved before the surrogate, any devisee or legatee named therein, or any heir or-next of kin to the testator, may, within three months thereafter, appeal from the decision. (2 R. S. 66, § 55.) This provision is, of course, sufficiev 'vy broad to authorize this appeal, even though the mt was a petitioner for probate.

.•eble attempt was made, upon the hearing before the te, to show the incapacity of the testator, but the ground upon which the appellant relies to reverse the decision of the surrogate is, the changes which were made in the property of the testator between the time of making the will and his death. It is undoubtedly true, that by the sale of the Embree farm, which had been devised to the appellant, he has been nearly disinherited. The interests of other parties have been affected, some for the better and some for the worse, but none so seriously as those of the appellant. The daughters of the testator are deprived, for the most part, of what he intended, when he made his will, they should receive. But they are partially, perhaps fully, compensated, by being made heirs, with their brothers, of the piece of land purchased after the will was executed. The principal hardship falls upon the appellant. The most of the land devised to him was sold, and the proceeds, being personal property, have probably gone to increase the amount to be received by his brothers, Charles and John, to whom the personal estate was bequeathed.

But, however willing we might be to see the will annulled, and what might seem to us a more equitable distribution of the property take place, it is not the province of this court to interfere. The will was executed in due form of law, and by a competent testator. I am not aware that a mere alteration of the estate has ever been allowed to work a revocation of the whole will. The doctrine of implied revocation had, indeed, been carried so far, in respect to specific devises, that the legislature, in the revision of our statutes in 1830, thought fit to interpose, and to define the cases in which it should be allowed to operate. (2 R. S. 64, §§ 46 to 48.) Now, a change in the property of the testator, subsequent to the execution of his will, operates as a revocation of the devises in the will, just so far as the alteration in the property has had the effect to place it beyond the operation of the provisions of the will, and no further. In Adams v. Winne, (7 Paige, 97,) a testator had devised certain portions of his real estate to his two sons, and certain other portions to his two daughters. Subsequently, he sold a part of the real estate devised to his daughters, and received for a part of the consideration, a bond secured by a mortgage upon the same premises. It was held that the sale and conveyance of the lot operated, pro tanto, as a revocation of the devise. The will, itself, took effect, and the bond and mortgage, which had been substituted for the lot devised, passed to the children of the testator under a residuary provision. (See also Beck v. McGillis, 9 Barb. 52.) So, in this case, the sale and conveyance of the principal part of the farm devised to the appellant operated as a revocation, not of the whole will, but of the devise contained in the will, to the extent that the1 testator had divested himself of the property devised. The proceeds of the land thus sold, if in the hands of the testator at the time of his death, passed, with the residue of his personal estate, to those children to whom that estate had been bequeathed. There Was nothing in these changes which could have the effect to revoke, or in any way invalidate the will itself. . The order of the surrogate, therefore, was right, and should be affirmed with costs.

[Albany General Term, May 4 1857.

W. B. Wright, Hartiss and Gould, Justices.]