Robert E. Hopkins duly executed his last will in November, 1891, with all the attendant formalities prescribed by the statutes of this State. He died on May 9, 1901. On May fifteenth the will was offered for probate to the Surrogate’s Court of the county of Westchester. At this time there were certain vertical lines upon the signature. If these were made by the testator with intent or for the purpose of revoking the will, and the fact of such destruction had been proved by two witnesses, the surrogate would have been required to refuse probate. He admitted the will to probate, and this appeal from his decree is taken by the infant son of the testator, through his special guardian, who contends, first, that incompetent evidence was received; second, that the surrogate erred in reserving his ruling upon the. admissibility of evidence objected to as incompetent; third, that his findings upon the facts proved are against the laws of evidence and are inconsistent; and, fourth, that his findings are against the weight of evidence.
The testator left him surviving his widow, Fanny W. Hopkins, *561and his son, Robert E. Hopkins, an infant about thirteen years of age, his only heir at law.. The provisions of the will have an important bearing in ascertaining the character, intentions and purposes of the testator. He devised to his widow his family residence and some other real estate at Tarrytown, the household and stable furniture and the sum of $250,000, all this in lieu of dower. He bequeathed to his son $100,000. He devised to Mrs. Upson, his sister, a house in Syracuse and provided a trust fund of $25,000, the income of which was to be paid to her during life, and at her death the fund was to be paid to certain benevolent institutions in Syracuse. He bequeathed to a cousin, Miss Harper, $5,000; to Miss Kernoehan, the daughter of an old friend, $1,000; to his sister-in-law, Miss Mary B. Chambers, $5,000 in railroad bonds; to his sister-in-law, Miss Helen T. Chambers, $1,000; to Robert D. Benson, son of his partner, $1,000 in stock; to the academy at Pompey Hill, Onondaga county, $3,000; to the Congregational church in the same town, $3,000 ; to the trustees or officers of the old cemetery in the same town, $3,000 ; to the First Presbyterian Church of Titus-ville, Penn., $10,000; to a former waiter, $500; to Alexander Chambers, Jr., his watch and chain ; to Mr. Dane, his diamond stud ; to the American Board of Commissioners for Foreign Missions, and to the American Home Missionary Society, each $10,000. He gave the residue of his property, two-thirds to his widow and one-third to his son. He carefully provided that if his estate was insufficient for all the sums of money bequeathed, each bequest should be proportionately diminished, and directed that no bequest should be enforcible for three years. He named his widow and his friend David McKelvy his executors, giving full powers.
I have detailed these testamentary provisions because the will shows the testator to have been an intelligent man, desiring, intending and careful to provide primarily for his widow and child, and secondly for legacies to institutions and benevolent organizations and to relatives and friends more or less dependent upon him and with whom his relations were pleasant and, as shown by the evidence, continued to be so up to the time of his death. The will was drawn by his intimate friend and partner, Mr. McKelvy, who remained until the testator’s death his intimate business associate.
*562Mr. Hopkins was born at Pompey, in Onondaga county. He made bequests to the academy, the church and the cemetery association of that town, and to benevolent institutions at Syracuse, in the county of his birth. He had been connected in business relations with Benson and McKelvy at Titusville, each of whom was remembered; and he made a bequest to a church in Titusville. He also made substantial bequests to three missionary societies. He provided for relatives and friends, and the remainder of his property he gave to his widow and child. In all this he evinced the careful habits of a man who knew what he wanted to do, and did it. He evidently knew, or was advised by his counsel who drew the will, how a will should be executed. We are now asked to believe that this intelligent, painstaking and discriminating will-maker canceled his will by making with a pen vertical strokes upon the signature, not in the presence of witnesses, nor with the formalities provided by the statute ; and that without making a new will or leaving any written explanation of his intention so to do, or his reasons for doing it. No suggestion of any cause or reason for any change of his testamentary intentions appears in the record. On the contrary, it is in evidence and not disputed, that his relations with his wife and child and his relatives and friends named in the will continued to be of an affectionate character, without any estrangement or change, up to the time of his decease. On May sixth his wife accompanied him on a trip to Philadelphia. They spent the nights of May sixth and seventh at Newtown, near that city, and returned to their home in Tarrytown on the eighth. On the ninth he died suddenly of apoplexy. The following quotations are from the testimony : “ He was a large-minded public citizen, * * * a man of large mind and generous nature, * * * a man with a good deal of sentiment, * * * persons he liked or anything of that kind he was very fond of. * * * A strong character, * * * very strong, * * * at the time of his death * * * he was about sixty-eight. * * * Major Hopkins, was a good business man. * * * Very careful. * * * He was systematic; was a careful, methodical business man * * * and kept his business matters in good shape.”
The record discloses no evidence whatever of any desire on his part either to cancel his will or to make any changes in its provi*563sions, except such as could be inferred from a conclusion that the canceling marks were made by himself.
Can it be presumed that a man of this character, careful, systematic, methodical in his business, familiar with business affairs, would cancel a well-considered, reasonable will, where no change of conditions is shown; would cancel such a will by an act so utterly informal as is shown by the appearance of the will ?
In the case of Sugden v. Lord St. Leonards (L. R. 1P. D. [1875-6] 154), made famous partially because it involved the will of a former Lord Chancellor of England, Sir James Hannen, in considering the question of the revocation of a will, used language which is singularly apposite to the case at bar, when he said (p. 176): “ It is obvious that where a will, shewn to have been in the custody of a. testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation ; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some one or more of them ? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument.”
We come now to the consideration of the provisions of the Revised Statutes (2 R. S. [9th ed.] 1878) which reads as follows: “ § 42. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall 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 tl^e will itself was required by law to be executed ; or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his 'presence, by his direction and consent, and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.”
Here is a careful guard against the fraudulent destruction of wills. Its prohibitory language is stronger than affirmative language *564would be. “No will,” says the statute, “shall be revoked,” except by the following methods: First, by some other will in writing; second, by some other writing declaring such revocation, executed with the same formalities required for the execution of the will itself; third, cancellation, obliteration or destruction, with the intent and for the purpose of revoking the same, by the testator himself; or. fourth, by another person in the presence of the testator and by his direction and consent, this to be proved by two witnesses. ,
The first, second and fourth of these methods may easily be eliminated from our consideration, as there is not a particle of evidence upon which such a revocation could be based. The third method requires evidence of the cancellation, obliteration or destruction by the testator, with intent or for purpose of revocation.
The only evidence on this subject is such as may be inferred from the production of the will itself with the canceled signature. All the probabilities derived from the circumstances are against the proposition that this was the act of the testator; such as the execution of a will suitable to the circumstances of the testator and his family, its existence for ten years, its production before the surrogate, as executed by the testator, undestroyed and without any change in its condition except the marks upon the signature. It would have been easy for the testator, who had been advised by his physician that he was liable to sudden death, if he had desired to change any of its provisions, to have made a codicil or an entirely new will, and his means were ample to secure professional assistance for the purpose. Mr. McKelvy, who drew it, was still alive, was his friend and business associate. He was named as one of the executors, and just prior to the testator’s death accompanied Mr. Hopkins on a pleasure trip to California occupying several weeks. If the testator had wished to cancel the will altogether he might have destroyed it absolutely, as for instance by burning it or tearing it up. He did none of these things. Even his signature to an alteration on the first page of the will was not obliterated. Shall we, on the single fact that canceling marks appear upon the signature of the will, infer that those marks were made by the testator, and also that he made them with the intent and for the purpose of revocation, where there is no other evidence, whatever, of such act, *565purpose or intent on his part? Clearly, such a decision would fly into the face of the statute, which is intended to prevent, and not to invite and encourage, the fraudulent destruction of wills.
This is not a case where a will with canceled signature was found upon the person of the deceased, or in a place of deposit to which, as in Probate of Will of Mary Ann Clark (1 Tuck. 445) and in Matter of Brookman (11 Misc. Rep. 675), substantially he alone had access. In such a case a strong presumption might arise that he had himself made the canceling marks. On the other hand, there is sufficient evidence to show that the will was not found upon his person, or in his safe deposit box; that several days after his death a very thorough search was made of his desk, to which there was general and common access, and that the will was not there at that time, and that a few hours afterward it was found there by one of Mr. Hopkins’ business associates whose integrity is unquestioned. Such facts are sufficient to destroy any presumption that the cancellation was done by the testator.
Mr. Redfield, in his Treatise on The Law and Practice of Surrogates’ Courts in the State of New York, says (5th ed. pp. 198, 199): “ To effect a revocation by destruction or cancellation of the instrument it is essential that there should be an intention as well as a physical act; the mere act of cancelling a will is not a revocation unless it be done animo revocandi. But a mere intention to revoke, however strongly declared, is of no effect unless carried out by some act amounting to a cancellation or revocation. The act, however, being done, the intention may be inferred from the circumstances attending the act.”
In Throckmorton v. Holt (180 U. S. 552), a leading case upon the question before us, Mr. Justice Beckham writing, it was held, after a cai’eful review of English authorities, that no presumption of revocation of a will by the testator or under his direction arises from the appearance of the will when first received by the register of wills. There must be some evidence of an act by the deceased or under his direction sufficient to show the fact, or the instrument must have been found among the papers of the deceased, mutilated, torn or defaced, under such circumstances that the revocation might be presumed; and as the production of the will created no presumption of revocation, it was necessary to prove that the act of *566mutilation was performed by the testator or by his direction and with an intention to revoke. The burden of proof in this respect -is upon the contestant, and the record before us is entirely barren of any such evidence.
I cannot more succinctly state the facts as to the custody, search for and finding of the will, and its condition when found, than by an extract from the opinion of the surrogate (Matter of Hopkins, 35 Misc. Rep. 708), premising that there is abundant evidence to support his statements:
“ The proof in this case shows that Mr. Hopkins was a careful, methodical business man. At the time of his death he was the secretary and general manager of the Tide Water Pipe Co., the ofiice of which was at 12 Broadway, New York city, at which office he attended about twice a week. When there he occupied a roll-top desk of the company assigned to his use, but when he was absent the desk was occupied and used by others, being left unlocked so that anyone in the office could have access to it.
“ He had a safe deposit box in the Produce Exchange Safe Deposit Company, of New York city, in the joint names of himself and wife, and he also had a safe deposit box at Tarrytown.
“ He died on the ninth of May, and was buried on the twelfth. On Monday, the thirteenth, his widow, the proponent, accompanied by her brother, Alexander Chambers, went to Nexv York to the office of the Tide Water Pipe Co., and there met Mr. Warren, who was connected with the company, and who had held confidential relations xvith the deceased and had occupied a desk in the same room with him.
“ These three then went across the street to the Produce Exchange Safe Deposit Company’s vaults and made a careful search for a will, but none was found. They then returned to the office of the Tide Water Pipe Co., and a search was made by Mr. Warren and Mr. Chambers through the company’s safes, in which Mr. Hopkins sometimes put papers for safe-keeping, and through the desk in the office which had been used by him in his lifetime. No xvill was found.
“ Mrs. Hopkins and her brother returned to Tarrytown that day and searched the safe deposit box at that place, but no will was found.
*567“ On the next day, Tuesday, they returned to the office of the Tide Water Pipe Co. and the same persons again examined the box in the Produce Exchange Safe Deposit Company’s vaults "with like result. They then returned to the Tide Water Pipe Co.’s office and searched again carefully through the desk, which was an ordinary roll-top desk with drawers on the right and left-hand sides of the top portion, these drawers being about 15 inches long, 8 inches wide and 2 inches deep. Every drawer was examined and every paper taken out and examined, and every envelope was opened, but no will was found and the search was given up about one o’clock. Mrs. Hopkins returned again to Tarrytown and made another search in the box at the bank and in his private desk at home, with no better results.
“ About three hours after Mrs. Hopkins and Mr. Chambers left the New York office, Mr. Warren went to the same desk to get a check book which belonged to a corporation in which both Mi-. Hopkins and himself were interested. He opened the right-liaud drawer under the roll top and there found a blue envelope, on the outside of which were the words, ‘Robert E. H.’ in Major Hopkins’ handwriting. Inside the envelope was the will. There were no other papers of any kind in this drawer, and the drawer was otherwise empty, with the exception of a few pens and an ink eraser.
“On examining the will, Mr. Warren found the signature of Major Hopkins to the will cancelled as already described. He read the will and called the attention of some of the parties in the office to the fact, and on the following morning turned it over to Mrs. Hopkins in the condition in which it was found.
“It appears that Mr. Hopkins was a man of about 68 years of age at the time of his death. At the time of the making of the will he was suffering from some tremulousness in his hands, clearly evident in his handwriting, and which increased as he grew older.
“We have the evidence of Mr. Carvalho, the noted handwriting expert, that in his opinion the marks cancelling the signature were not made by the same hand that wrote the signature.
“ It further appears that a year prior to his death he had been told by his physician that he had heart trouble and must be very *568careful; that he was liable to. pass away at any time by apoplexy, and that he should get his business in proper shape, and that if he had not made a will he should do so.”
It is difficult to see how, on such facts, the surrogate could have come to any different conclusion than he did in finding that “ the vertical marks made with pen and ink through the signature of Robert E. Hopkins to said instrument, cancelling the same, were not made by the said Robert E. Hopkins, or by his direction and consent.”
The conclusion of the surrogate is still further strengthened by an inspection of the signature and canceling marks upon the will, which was produced as an exhibit in this court. When he executed the will the testator wrote his signature in two places in a trembling hand. His physician testified that in the latter years of Mr. Hopkins’ life there was a gradual decline of vigor and a tremor in his. hands, sometimes more marked than at others; and that there was. a gradual increasing of these symptoms during the ten years before, his death. Mr. Carvalho pointed out to the surrogate the firmness, of the canceling pen marks, and testified that there was no evidence of tremor in them; that they were definite, made determinedly and even viciously, and showed through and on the reverse side of the page, and even upon the sheet below it; and that the marks were not made by an infirm hand. . It is evident from the physical condition of Mr. Hopkins that he had no power to make any marks of that character. The inference is clear that some person other than Mr. Hopkins made the pen marks, and that being my conclusion I find nothing to call upon this court to differ with the findings of the-, surrogate that Mr. Hopkins did not make the pen marks in question and that the will was entitled to probate.
The special guardian strenuously contends that it was error for-the surrogate to admit testimony of several witnesses as to declarations made to them by the testator subsequently to the execution of the will, tending to show that nearly until the time of his death he believed himself testate. The evidence was admitted subject to a. motion to strike it out. The court reserved decision upon that motion, and the guardian excepted to this ruling.
It is settled by Matter of Kennedy (167 N. Y. 163) and Throckmorton v. Holt (supra) that such evidence was incompetent to. *569prove that the will was in existence at the time of the testator’s death. After consideration the learned surrogate came to the same conclusion, and in his opinion he states that he has stricken out the testimony in question. But the counsel contends that the overruling of his objection, the admission of the testimony and the reservation of decision were error which cannot be cured by striking it out. He relies especially upon four cases, Hopkins v. Clark (90 Hun, 4); Sharpe v. Freeman (45 N. Y. 802); Lathrop v. Bramhall (64 id. 365) and Wright v. Reusens (133 id. 298).
I have no doubt that if the trial had been before a jury the reception of the testimony in the manner stated would have been reversible error, as no court could accurately determine the influence which it exercised upon the minds of the jurors. But where the trial is by a court or by a referee, without a jury, the effect is not so dangerous. (See Lathrop v. Bramhall, supra.)
Counsel quotes the language of Mr. Justice Bkadley in Hopkins v. Clark (supra), on appeal from a judgment entered on the report of a referee, where he said (p. 6): “ This method of disposing of objections to evidence has hitherto been disapproved by the courts, and it is not allowable in practice to reserve questions arising upon objections to the introduction of evidence without consent.” (Citing the Sharpe, Lathrop and Wright cases.) But the learned counsel failed to add the next paragraph : “ In the present case the defendant was not prejudiced by the reservations so far as they may be deemed made without consent. And much of the evidence to the introduction of which exceptions were taken was rendered harmless by the fact that the subjects to which such evidence related were not considered by the referee in the final determination made by him as appears by his report.”
Sharpe v. Freeman was an appeal from a judgment entered on the report of a referee. The court criticized similar practice on the part of the referee, yet it affirmed the judgment.
In Lathrop v. Bramhall, where also the referee reserved his decision upon the objections to the admissibility of evidence and exception was taken, the court said that it could not be seen how the action of the referee seriously affected the defendant’s interest and that there was no legal error justifying a reversal. The judgment was affirmed.
*570So in Wright v. Reusens the court affirmed a judgment entered on the report of a referee, where, without consent and under excep tion, he reserved his decision upon similar objections, and a motion was made to strike out the evidence. The court held that ordinarily such rulings constituted error, unless the questions reserved were immaterial or of such a character that if decided against the party raising them the decision would constitute no sufficient ground of error. The affirmance of the judgment shows that such reservation of ruling did not in the opinion of the court necessarily constitute error.
As the surrogate subsequently decided, and in his opinion stated, that the evidence was stricken out and not considered by him in his decision, we are brought to the question whether the failure to rule on the question of admitting the evidence when it was offered was prejudicial to the appellant, for by section 2545 of the Code of Civil Procedure a decree “ shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.” If this court concludes that the result reached by the surrogate might properly have been reached by him without the evidence referred to, it is at liberty to disregard the supposed error, oh the ground that it could have had no influence in determining the case. If the judgment is clearly right, notwithstanding the error, it is no ground for reversal. (Matter of Miner, 146 N. Y. 136; Loder v. Whelpley, 111 id. 247.) In my opinion the decree was fully sustained by the evidence.
The special guardian argues with great earnestness that judges are as human as jurors and that the minds of the former are just as much tainted and affected by incompetent evidence as the minds of the latter, that nothing reaches the mind without making its impression. Tet with singular inconsequence he has printed in the appeal book the objectionable testimony, though it had been stricken out, apparently without any grave fear that similar results would follow our perusal of the record.
The objection to the admission of the evidence of Dr. Coutant, the physician of Mr. Hopkins, is clearly untenable under section 836 of the Code of Civil Procedure, for the testimony did not involve any “ confidential communications ” made by Mr. Hopkins to Dr. *571Ooutant. Besides, the real question was the validity of the will and this embraces the contention that the will had been invalidated by some act of the testator subsequent to its execution; and the executors named in the will, and the widow on the trial, waived the professional privilege of the physician. It is not widow and heir at law and executors who must waive, but either or any of them; and here, both the widow and executors did waive.
The testimony of Mr. Carvalho, as to the character of the pen marks, was competent. I think that the word “ writing,” in chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888, includes not only what is ordinarily and etymologically known as writing, but also such penmanship as constitutes the pen marks in question. This is in consonance with the purpose and plan of the act.
I reach the conclusion that incompetent evidence was not received by the surrogate; that no prejudice has resulted to the contestant from the surrogate’s reservation of his ruling upon the admissibility of the declarations of the testator; that his findings upon the facts proved are not against the laws of evidence or incompetent, and that his findings are not against the weight of evidence. On the contrary, I am of opinion that his decree was amply sustained by evidence and that he could not properly have done otherwise than to admit the will to probate.
The decree of the surrogate should be affirmed with costs to the proponent and the special guardian, and to each other respondent, payable out of the estate.
All concurred, except Woodward, J., who read for reversal, with whom Jenks, J., concurred.