Statement of case.

named, and also named one of the executors, held, that the description was sufficient to give the surrogate jurisdiction.

In the duplicate not presented for probate the name of one of the executors, which was regularly written in the other, was interlined, it apparently having been omitted in copying; the interlineation was noted at the bottom before the attestation clause, with a statement that it was made before signing, held that there was no presumption that the interlineation was fraudulently made after execution, but on the contrary the presumption was the other way, and the burden was upon the contestants of showing that the interlineation was fraudulent or unauthorized. It seems that when an interlineation, fair upon the face of an instrument, is entirely unexplained, there is no presumption, in the absence of any suspicious circumstances, that it was fraudulently made after the execution of the instrument.

(Argued January 30, 1884; decided February 26, 1884.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department entered upon an order made September 11, 1883, which affirmed a decree of the surrogate of the county of Kings denying an application to revoke the probate of the will of Henry Crossman, deceased. (Reported below, 30 Hun, 385.)

The facts so far as material are stated in the opinion.

Henry L. Clinton for appellants. When a will is executed in duplicate it is necessary to present both duplicates for probate. (Code Civ. Pro. § 2472, 2614, 2635; Bloom v. Burdick, 1 Hill, 139; Jones v. Reed, 1 Johns. Cas. 20; 4 Black. Com. 268; Rex v. Whitear, 3 Burr. 1366; Corwin v. Merritt, 3 Barb. 341, 343.) Both copies so executed constitute the will. (Wharton's Law of Evidence [2d ed.], 79, § 74; Roe v. Davis, 7 East, 363; Carlisle v. Blamire, 8 id. 487; Paul v. Meek, 2 Y. & J. 116; Houghton v. Koenig, 18 C. B. 235; Stowe v. Querner, L. R., 5 Exch. 155; Cleveland R. R. v. Perkins, 17 Mich. 296; Munn v. Godbold, 3 Bing. 292; S. C., 11 Moore, 292; Doe v. Ross, 7 M. &. W. 102; Hall v. Ball, 3 M. & Gr. 242; Hawes v. Forster, 1 M. & Rob. 368; Gresham v. Taylor, 51 Ala. 505; Alwoon v. Furnivall, 1 C. M. & R. 292; Colling v. Treewick, 6 B. & C. 206; Phillipson v. Chase, 2 Camp. 111; Williams on Executors, 154; 1 Red

Statement of case.

field on Wills, 305; 2 Greenl. Ev. [13th ed.], § 682; 1 Jarm. on Wills [5th Am. ed.], 296, 297; Richards v. Munford, 2 Phil. 23; Doe v. Strickland, 8 Common B. 724; Hubbard v. Alexander, L. R., 3 Ch. Div. 738; Boughey v. Moreton, 2 Lee's Eccles. 532; Colvin v. Frazer, 2 Haggard's Eccles. 266; Burtonshaw v. Gilbert, Cowp. 49; Onions v. Tyner, Vernon, 742; Roberts v. Round, 3 Haggard's Eccles. 548; O'Neall v. Farr, 1 Rich., L. R. [S. C.] 88; Killican v. Lord Parker, 1 Lee's Eccles. 662; 1 Williams on Executors, 359; Forman Will Case, 54 Barb. 285.) Even if two testamentary papers, executed at the same time, contain inconsistent provisions, they constitute in legal effect but one paper. (In re Forman's Will, 54 Barb. 275, 284.) The whole will, not a part of it, should be offered for probate in the first instance. The probate of a part of a will is no probate at all. (Hubbard v. Alexander, L. R., 3 Ch. Div. 738; Boughey v. Moerton, 2 Lee's Eccles. 532; Colvin v. Frazer, 2 Haggard's Eccles. 266; Roberts v. Round, 3 id. 548; 1 Williams on Executors, 359; Doe v. Strickland, 8 C. B. 724.) It is the duty of the surrogate to revoke the probate of a will, whenever it appears before him by proper proof in any proceeding that such probate ought not to have been granted. (Dam's Estate, 1 Tuck. 107; Merchant Will Case, id. 17.) Upon the trial before the surrogate, on the allegations of contestants, he had no legal power to admit the alleged duplicate to probate had he been asked to do so by proponent. (Code Civ. Pro., §§ 2651, 2652.) In the absence of explanatory evidence, the law presumes that all alterations made in a will, were made after its execution. (Goods of Sykes, L. R., 3 P. &. D. 26; Abb. Trial Evidence, 133.) The burden of proof was upon proponents to show that the will was executed in accordance with the statutory formalities. (Delafield v. Parish, 25 N. Y. 35; Howland v. Taylor, 53 id. 627.)

H. W. Bookstaver and James R. Steers, Jr., for respondents. One duplicate of a will is not a part of the will in the sense that it must be read with the other, in order to learn what the

Opinion of the Court, per EARL, J.

will of the testator is. (Odenwaelder v. Schorr, 8 Mo. Ap. 458.)

EARL, J. Henry Crossman, the testator, died in January, 1881, leaving a will executed in duplicate. The duplicates were executed at the same time, with the same subscribing witnesses, and contained the same provisions, and the same language. One of the duplicates was produced before the surrogate, and was duly proved and admitted to probate, January 28, 1881. Within a year thereafter several of the heirs and next of kin of the testator filed allegations against the validity of the will, the competency of its proof and the mental capacity of the testator, under the provisions of the Code of Civil Procedure. (S$ 2647 to 2653.) On the trial of these allegations before the surrogate, the proponents produced their testimony in support of the will and rested. Among their proofs was the duplicate copy of the will executed by the testator, which they offered in evidence for the purpose of showing that it was identical with the will proved, and that there had been no revocation of the will, but not for the purpose of having it admitted to probate as a will. The counsel for the contestants objected to the proof on the ground that the alleged duplicate was not admissible in evidence for the purposes specified, or for either of them, and also upon the ground that it was inadmissible in evidence for any purpose whatever. The surrogate admitted the will in evidence for the limited purpose for which it was offered, but not, as he stated, "with the idea that it can be admitted to probate in this proceeding, that question being reserved for future consideration, if it be raised." The counsel for proponents offered to file with the court the duplicate will, and the counsel for the contestants objected, and the duplicate was thereupon put in evidence. After the proponents had rested their case the contestants moved that the probate of the will be revoked on the ground" that it appeared in evidence before the surrogate, that at the time the paper, admitted to probate as a will of the said Henry Crossman, deceased, was executed, another paper,

Opinion of the Court, per EARL, J.

claimed to be a testamentary instrument, was executed by him at one and the same time; that the said two testamentary papers were signed by the alleged testator at one and the same time, there having been no separate execution of either of said alleged testamentary papers, and that only a part of the alleged last will and testament of Henry Crossman, deceased, had been admitted to probate." The motion was denied by the surrogate, and after hearing all the evidence offered by the parties he made a decree dismissing the allegations of the contestants and affirming the original probate. The contestants appealed from his decree to the General Term of the Supreme Court, where it was affirmed, and they then appealed to this court, and here rely upon several allegations of error which will be noticed.

The contestants claim that, as these duplicates were executed at the same time by the testator, as his last will and testament, it was necessary for the proponents to offer both for probate at the same time, and to have an adjudication by the surrogate upon both. It is undoubtedly true that where two testamentary papers are executed at the same time, with the formalities required by law, they must be taken together to constitute the will of the testator. If the two papers contain different provisions, the one making bequests or devises not contained in the other, then both must be proved and admitted to probate, and both constitute, when read together, the will of the testator, as if all the provisions of both were contained in one instrument. (In the Matter of Forman's Will, 54 Barb. 274.) This is only a branch of the general rule applicable to all written instruments, relating to the same transaction, executed at the same time, for the purpose of expressing the intention of the parties in reference thereto. All the instruments in such cases set forth the transaction, and embody the intention of the parties, and they must always be read together. But where an agreement is reduced to writing in duplicates, each being exactly like the other, then there can be no reason to require a party, in proving such an instrument, to produce both. It is very common to execute leases and other instruments in duplicates, each party having one, and where they are precisely

Opinion of the Court, per EARL, J.

alike either party can come into court and produce the duplicate which he has, and prove it; and he need not prove or cause the production of the other. So if the same party has duplicate instruments executed for his own benefit and safety, each duplicate expresses the entire agreement of the parties, and either may be proved without the other. The same rule must be applicable to wills. Where the duplicates are exactly alike, each expresses and contains the will of the testator; and either may be proved and admitted to probate without the other. There can be no conceivable reason for proving both, or for having both admitted to probate; and no authority in this country or England has been found which holds that in such a case it is necessary that both should be proved or admitted to probate. The proponents of either duplicate can undoubtedly be required to produce the other, so that both may be before the court for inspection, that it may be seen whether they are precisely alike, or whether there has been any revocation. But when it appears that they are alike, and that there has been no revocation, then it would be quite an idle ceremony to prove both, or to admit both to probate. Numerous cases were cited by the learned counsel for the contestants, holding that where a will is executed in duplicates a revocation of one according to law animo revocandi is a revocation of both. As each contains the will of the testator, a revocation of either is a revocation of his will, and thus revokes both. The following are some of the authorities cited: (1 Williams on Executors, 154; 1 Redfield on Wills, 305; 2 Greenl. Ev., § 682; 1 Jarm. on Wills, 296, 297; Hubbard v. Alexander, L. R., 3 Ch. Div. 738; Doe v. Strickland, 8 Com. Bench, 724; O'Neall v. Farr, 1 Richardson L. R. [S. C.] 80.) None of the cases give any countenance to the idea that both duplicates must be admitted to probate. It does not take the two duplicates to express the will of the testator, but his will entire is found in each. In this case, before the surrogate, all was done which is required by any rule of law or even of prudence. The duplicate not probated was produced, proved and filed with the surrogate. In Odenwalder v. Schorr (8 Mo. Ap. R. 458), where