Biggs v. Angus , 3 Dem. Sur. 93 ( 1885 )

The Surrogate.

The testatrix died April 14th, 1885, leaving her surviving her husband, John Angus, and one son, Francis A. Biggs, by a prior husband; having executed a will dated June 19th, 1875, by which she devised all her estate absolutely to her husband, John Angus, which he propounded for probate, and which was contested by the son of the testatrix, upon the ground that she had executed a subsequent will dated November 2d, 1880, contain-; ing a revocation clause revoking all former wills made by her; and he asks that the will of 1880 be admitted to probate as the last will and testament of Charlotte Angus, deceased. It is unnecessary to discuss the question of the validity of the will of 1875, as it is disposed of by the will of 1880, which contained a provision expressly revoking all former wills made by the testatrix.

The will of 1880 was executed in triplicate ;• and on the 3rd day of April, 1885, testatrix executed a revocation of said.will, written on the last page of two of the triplicate set thereof. The only questions to be disposed of are—whether said revocation was executed in conformity to the statutory requirements for the execution of a will; whether the testatrix at that time possessed testamentary capacity; and whether she executed it free from undue influence. It appears from the testimony that testatrix, in the presence and hearing of the witness, Mary E. Thurber, told her husband, John Angus, to go to lawyer Payne’s after a paper of hers, and also to Mr. Stanley’s, as she had made a will and had done something and gave away something that did not belong to her, and she wanted to have it changed. “ She could not die with it on her mind.” Her husband told her: “no, if that suited her the way things were,, let it be so.” She said: “ no, I can’t die and let this be so.” He refused twice to go, and then insisted on her writing an order to Mr Payne, which she did, first directing witness, Mary E. Thurber, to get her glasses, designating where they could be found. A few hours afterwards, Mr. Payne came to the house and drew the revocation of the will of 1880, writing it in duplicate, one on the last page of two of the triplicate set of the will of 1880, but neglecting to write it on the third of the set, which he had in dispossession.

It further appears that, in the presence of witness, Mary E. Thurber, Mr. Payne read the revocation so written to the testatrix, and she declared that “it was all right ” and signed it, and then at her request, the' witnesses, Mary E. Thurber and Oliver N. Payne signed the attestation clause. The testimony, also, shows that testatrix executed it without being unduly influenced by her husband, and that she was of sound mind and memory at the time of its execution.

Upon a careful review of all the testimony, I am of the "opinion that the revocation was executed in conformity to the statutory requirements; that testatrix at the time of its execution possessed testamentary capacity; that she was not unduly influenced to execute the same, and that the said will of date April 3rd, 1880, was legally revoked thereby.

Therefore, I am of the opinion that the testatrix, Charlotte Angus, died intestate.