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Matter of Estate of Anna L. Danielly

Decided: June 11, 1951.

IN THE MATTER OF THE ESTATE OF ANNA L. DANIELLY, DECEASED


Palese, J.c.c.

Palese

The question presented for determination by this court is whether a document dated July 8, 1939, and purporting to be the last will and testament of Anna L. Danielly, deceased, may be probated as such.

The document was signed and sealed by the decedent and contains a perfect attestation clause. It is also signed by two attesting witnesses. One of the attesting witnesses is dead. However, the other witness, Louis S. Darnell, appeared

in court and testified as to the manner of execution of the will. His testimony was to the effect that all the requisites of the statute were complied with.

A reading of the will shows that several paragraphs thereof have been crossed out in pencil and portions of other paragraphs have been marked out by pencil. On the back of the document, the following notation appears:

"No Good

New Will to be written

Do not use

ANNA L. DANIELLY"

This document was located in an iron safe in the residence of the decedent, and was obviously in her possession at the time of her death.

The first inquiry presented is the effect of the handwritten notation on the back of the will. There is no doubt that this notation was made by the decedent. If this notation has the effect of revoking the will, it, of course, may not be probated. It is essential to a revocation of a will that the testatrix intended to revoke it. In re Davis' Estate , 134 N.J. Eq. 393, 35 A. 2 d 880 (E. & A. 1944).

The language of the notation clearly indicates that the testatrix intended to revoke the will under consideration. However, under our statute, intention unaccompanied by one or more of the enumerated acts is not sufficient to effect a revocation, R.S. 3:2-4. Where a will has been executed with all the legal formalities, it can be revoked only by burning, cancelling, tearing or obliterating it by the testator, or by his direction, or by a writing executed with the same formalities as the will itself. In re Haness' Estate , 98 N.J. Eq. 645, 130 A. 655 (Prerog. 1925); In re Frothingham's Will , 75 N.J. Eq. 205, 71 A. 695 ...


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