In re the Probate of the Will of Macomber
274 A.D. 724, 87 N.Y.S.2d 308, 1949 N.Y. App. Div. LEXIS 5877 (1949)
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Rule of Law:
The doctrine of dependent relative revocation applies in New York, meaning an act of revocation is ineffective if it was made with the present intention of creating a new testamentary disposition that ultimately fails due to improper execution.
Facts:
- On July 25, 1910, the testator duly executed a will on a printed form, with handwritten dispositions.
- At some later point, the testator drew large diagonal lines through more than half of the written text of the 1910 will.
- The testator wrote 'See codicile' diagonally through the text and in the left margin of the 1910 will.
- The testator prepared and signed an instrument entitled 'Codicile to my will,' dated October 17, 1946, which made other dispositions of his property.
- The 1946 codicil was not executed with the legal formalities required for a valid testamentary instrument.
- All marks, notations on the will, and the later codicil were made by the testator.
Procedural Posture:
- Upon the testator's death, the 1910 will and the unexecuted 1946 'codicile' were found.
- A contestant argued that the 1910 will was revoked, which would result in intestacy (dying without a valid will).
- The Surrogate's Court (the probate court) rejected the contestant's argument, applied the doctrine of dependent relative revocation, granted a motion for judgment on the pleadings, and admitted the 1910 will to probate.
- The contestant (appellant) appealed the Surrogate's order to the New York Supreme Court, Appellate Division.
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Issue:
Does the doctrine of dependent relative revocation apply in New York to prevent intestacy when a testator conditionally revokes a prior will with the intention of making a new, but invalid, testamentary disposition?
Opinions:
Majority - Bergan, J.
Yes, the doctrine of dependent relative revocation is admissible in New York and should be applied to prevent intestacy. The court determined that the testator's acts of cancellation on the 1910 will were conditional upon the effectiveness of the 1946 'codicile.' Since the codicil was not executed with the required legal formality, it was abortive and failed to fulfill the condition for revocation. The court reasoned that the doctrine functions as a rule for interpreting a testator's intent, presuming that a revocation related to a new, failed testamentary disposition is tentative. This approach avoids intestacy where a will was once validly executed and the subsequent acts of revocation appear equivocal or conditional. The court noted that this interpretation is consistent with Decedent Estate Law § 34, which requires an 'intent to revoke,' and a conditional cancellation negates such an intent if the condition is not met. The specific facts of this case, where the testator explicitly linked the cancellation to the 'codicile,' fit the classic pattern of the rule.
Analysis:
This case significantly clarifies the applicability of the doctrine of dependent relative revocation in New York, resolving prior judicial hesitation and conflicting opinions. By adopting the doctrine as a rule of interpretation for testamentary intent, the court provides a mechanism to avoid intestacy when a testator's attempt to modify or replace a will fails due to procedural defects. This ruling emphasizes the court's commitment to upholding a testator's conditional intent, rather than strictly applying revocation statutes to produce an outcome the testator likely did not desire. Future cases involving ambiguous cancellations or attempted new wills are likely to reference this decision to determine if a revocation was truly absolute or merely conditional.
