Surrogate's Court, New York County, January, 1922.

PROCEEDING for probate of will.

[Vol. 117.

Zabriskie, Sage, Kerr & Gray (George Zabriskie and George Gray Zabriskie, of counsel), for Protestant Episcopal Bishop of New York.

Alexander & Green (Daniel Whitford, of counsel), for Protestant Episcopal Bishop of Long Island.

John G. Daniel, for proponent.

COHALAN, S. A paper writing duly signed and executed by the above-named testator, dated March 1, 1873, has been filed for probate and the question is whether or not this will has been revoked or cancelled. The will was found in the testator's safe deposit box after his death, which occurred July 12, 1921. It is torn across horizontally in two places, but this tearing is obviously the result of age and wear, the tears being evidently caused by folding and creasing. The revocation or cancellation of the will is not predicated on the fact of these tears. It is based on the words written vertically across its face "Will revoked. Geo. W. Parsons," and "This will is hereby revoked. Geo. W. Parsons."

Section 34 of the Decedent Estate Law provides two methods for rendering a will which has been properly executed, null and void: First, that it shall not "be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed;" or second, "unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself."

The words on the face of the will show an attempt on

Misc.]

Surrogate's Court, New York County, January, 1922.

the part of the testator to revoke the will by "some other writing of the testator" under the first part of section 34 of the Decedent Estate Law. There is no conclusive proof that the words were written by the testator. It is conceded that the writing resembles that of the will, which is holographic. The will was executed forty-eight years ago, and no proof is submitted that the testator had at all times sole access to it. Admitting, however, that the words were written by the testator, they are ineffective to work a revocation, because the statute has not been complied with in having the revocation "executed with the same formalities with which the will itself was required by law to be executed." There are no witnesses to the revocation.

Proceeding to the second part of section 34 of the Decedent Estate Law, there is no doubt that the will was not burned, torn, obliterated or destroyed; but was it cancelled? To "cancel" in its primary definition (Standard Dictionary) means "to mark out or off, as by drawing or stamping lines across to signify that it is to be omitted;" to draw lines across "something written so as to deface" (Century Dictionary); to "blot out or obliterate" (both dictionaries). "Cancellation" in its legal significance is defined (Bouvier L. Dict. [3d ed.] 416) as "The act of crossing out a writing. The manual operation of tearing or destroying a written instrument."' It has been held that "there can be no such thing as a cancellation of an instrument, either as a physical fact or as a legal inference, unless the instrument itself is in some form defaced or obliterated." Matter of Akers, 74 App. Div. 461, 466; affd., 173 N. Y. 620. In the Akers case the will was holographic, as in this case, and it was written upon legal cap paper, which con

Surrogate's Court, New York County, January, 1922.

[Vol. 117. tained a marginal line to the left. In the blank marginal space and running lengthwise the testator had written the words, "This will and codicil is revoked. January 14/96," and under such words had affixed his signature. In that case none of the words of revocation was written across any of the writing of the will itself. The court held that there was no revocation or cancellation. That case was decided on the ground that an examination of the will disclosed the fact that there were no marks on the body of the will which in any way cancelled or obliterated it in any particular, stating that in the cases called to the attention of the court there has been a physical cancellation of some of the words of the will, accompanied by an intent to cancel. In this will before the court there is no obliteration. True the words are written across the face of the will instead of on the margin, as in the Akers case, but as there is no obliteration or blurring out of the context of the will, the same reasoning applies to the facts in this case as was applied by the court in the Akers case. The testator on this will has written and expressed an intent to revoke his will, but has failed to complete and carry out such intent by the physical act of obliteration or cancellation. The usual method of cancelling any writing is by drawing lines through it or otherwise striking it out. In this case there is an abortive attempt to revoke this will by some other writing," ineffective under the first part of the statute to accomplish such result and unaccompanied by any obliteration sufficient to accomplish the result as a cancellation under the second part of the statute. In the Akers case the opinion states that "The great weight of authority is to the effect that a mere writing upon a will, which does not in any wise physically obliterate or cancel the same, is insufficient to work a destruction of the will by cancellation, even

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Misc.] County Court, Bronx County, January, 1922.

though the writing may express an intention to revoke or cancel." Such is the case in the will now before the court. This will is sought to be revoked by the testator solely by writing, and as it does not comply with the statute the revocation has failed. Failing of revocation by writing, reliance cannot be had on the words alone to effect a cancellation of the will. Such words must be disregarded when they are insufficient physically to accomplish this result.

I therefore hold the will has not been revoked or cancelled. Proceed accordingly.

Decreed accordingly.

FLORENCE M. TAPPIN, as Administratrix, etc., Plaintiff, v. ARTHUR E. MACLEAN, Defendant.

(County Court, Bronx County, January, 1922.)

County Court jurisdiction when judgment in excess of $2,000 may be entered.

Where the amount demanded by a complaint in a County Court is within the jurisdictional limitation, the jurisdiction to render judgment cannot be defeated by the fact that interest became due during the pendency of the action.

At the time a case in County Court was moved for trial, about ten years after the commencement of the action, and six years after the service of the answer, the sum demanded by the complaint, to wit, $1,959.20, amounted to $2,595.10 because of accrued interest. Held, upon a motion for judgment, the defendant not appearing, that plaintiff was entitled to judgment for the full amount demanded by the complaint, with interest to date.

MOTION by plaintiff for judgment, after proof.

M. S. Schector, for plaintiff,

No appearance for defendant.

County Court, Bronx County, January, 1922. [Vol. 117.

BAKER, Acting County Judge. The complaint in this action demands judgment for the sum of $1,600 with interest from the 17th day of August, 1911.

The action was commenced by the service of the summons and complaint on May 14, 1915. The answer was verified June 16, 1915.

The amount of the principal and interest, demanded by the complaint, was, at the commencement of the action, $1,959.20. This on December 23, 1921, when the case was moved for trial, amounted to $2,595.20.

The plaintiff, upon the failure of the defendant to appear at the trial, has made satisfactory proof of the cause of action and moves for judgment.

Has the County Court jurisdiction of the cause of action?

This is a court of limited jurisdiction and such limitation, in an action for the recovery of money only, is clearly restricted both by the Constitution and statute to actions "in which the complaint demands judgment for a sum not exceeding two thousand dollars." N. Y. Const. art. 6, § 14; Code Civ. Pro. § 340.

Thus, the amount demanded in the complaint is made the sole test of the property limitation of the power of the court in common law actions. Halpern v. Langrock Bros. Co., 169 App. Div. 464; Howard Iron Works v. Buffalo El. Co., 176 N. Y. 1.

Applying this test to the present action, we find at the time the action was commenced and the answer served, the amount demanded by the complaint was within the jurisdictional limitation. The power of the County Court to entertain the cause of action and render proper judgment was not and it would seem, could not then have been successfully questioned by the answer or otherwise.

The jurisdiction then obtained is continued unless the accrual of interest during the pendency of the action, which increases the amount in controversy to