The only question presented for review by this court is whether a will that is revoked by a subsequent one which is destroyed by the testator, is revived by his declaration that he desires his first will to stand, made to others than the subscribing witnesses, and where the persons to whom such declaration was made do not subscribe as witnesses to the will.
Who may make a will, how it shall be executed, how revoked, and after revocation how revived, are controlled by the statutes of the State. (2 R.S. ch. 6, tit. 1.) To constitute a valid will it must be subscribed at the end by the testator, in the presence of or acknowledged to have been so subscribed to at least two attesting witnesses, be declared to be his last will and testament, and be subscribed by each witness at the request of the testator. (§ 40.) A will may be revoked by another will or by a writing declaring such revocation, executed with the same formalities as are required for the execution of a will, or by being destroyed for the purpose *Page 45 of revoking it by the testator or by another in his presence and with his consent; but, where done by another, the consent and destruction must be proved by at least two witnesses. (§ 42.) If a second will is made, its revocation will not revive the first, unless it appears by the terms of the revocation that it was the testator's intention to revive and give effect to the first, or unless, after such destruction, he shall duly republish his first will. (§ 53.)
Obviously the first sentence of section 53 relates only to the revocation in writing provided for by section 42, and, therefore, to revive a first will under that provision a writing executed with the same formalities as are required for the execution of a will must exist, in which the testator, in express terms, declares his intention to revive and give effect to such former will. The second sentence of section 53 provides the only other method of reviving a prior will where it has been revoked by a second, which has been destroyed, and requires that where the revocation of the second has been by its destruction, the first will must be republished by the testator.
Therefore, the precise question to be determined is whether the declaration of the testator to persons who were not witnesses to his will was a republication thereof within the provisions of this statute.
In determining the meaning of the statute as to the replication of a will which has been revoked, it is proper to first consider the requirements of the statute in regard to the publication of a will. To render the execution of a will effectual, the testator must declare the instrument to be his last will and testament in the presence of at least two subscribing witnesses. It is manifest that such a declaration by the testator to two or even more witnesses who did not subscribe or attest the will, would not be a sufficient publication of it under the statute. The publication must be in the form of a declaration or other communication to the attesting witnesses.
With a clear understanding of the requirements necessary to the proper publication of a will, we are to interpret the provision of the statute relating to the republication of such *Page 46 an instrument. Is it to be supposed, after all these formalities and safeguards have been provided by statute as to the publication of a will, that a will which has been revoked, so that it is not a will at all, can be revived with less formality or with less or a different kind of proof than would be required to establish its first publication? We think not.
To publish a will, certain requirements must be observed, which are plainly pointed out in the statute, and when an inoperative and thus invalid will is required to be republished, before it becomes effective, we think the same formalities as to its publication must be observed. So far as its publication is concerned, a revoked will is as if it had never been published. If this will had been executed, but not published, it would hardly be claimed that its publication could be established by proof of the testator's declarations to others than the witnesses who subscribed it. We see no reason why the requirements applicable to the publication of a will should not equally apply to its republication. Any other rule would be in conflict with the obvious spirit and purpose of the statute, and would destroy the safeguards against fraud and improvidence by which the making and publication of wills have been so carefully guarded.
We are of the opinion that it was the intent of the legislature by this statute to require the same formalities and the same proof to establish a republication of a will as are plainly required to establish its original publication, and, hence, that a will which has been revoked can be revived only by its republication in the presence of its attesting witnesses.
No farther discussion of this question seems necessary in view of the very satisfactory opinion of Judge FOLLETT delivered in the court below, where all the authorities bearing upon the question are cited and examined.
The judgment and order should be affirmed, with costs.
All concur, except O'BRIEN, J., not voting, and HAIGHT, J., dissenting.
Judgment and order affirmed. *Page 47