I dissent because I think the learned surrogate, after receiving much objectionable testimony, arrived at a determination not warranted by the evidence properly before him. He has admitted to probate a certain writing purporting to be the last will and testament of Robert E. Hopkins, deceased, but it is claimed that the testator himself revoked the will by one of the methods mentioned in the Revised Statutes (Vol. II [9th ed.], 1878, § 42), to wit, by can*572celing. When, after the death of the testator, the will was found, it was in a drawer in the testator’s office desk; and it then appeared that the testator’s signature at the end of the will had been canceled by fourteen nearly perpendicular, wide and heavy pen strokes, the ink of which had evidently not been dried with a blotter but had been allowed to remain until it penetrated the sheet, so that the strokes were easily seen when the sheet was reversed. Their length was somewhat greater than the height of the small letters of the signature. If these pen strokes were made by the deceased, while in his right mind and for the purpose of revoking the will, there can be no question that we must hold the will revoked.
The Revised Statutes (supra) declare that “ no will in writing * * * shall be revoked * * * 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.” Thus, witnesses are necessary only when the act of revocation has been done by another person than the testator and by his direction.
When a will is not found at the death of the testator, the presumption is that it was destroyed by him animo revocandi. (Knapp v. Knapp, 10 N. Y. 276 ; Collyer v. Collyer, 110 id. 481; Minkler v. Minkler, 14 Vt. 125 ; Weeks v. McBeth, 14 Ala. 474.) And the same presumption exists when the will is found torn. (Betts v. Jackson, 6 Wend. 173; Idley v. Bowen, 11 id. 227.) As the surrogate says in Bulkley v. Redmond (2 Bradf. 281, 285), “ The naked fact that the will is not found, raises the presumption of revocation, and that presumption becomes conclusive, unless rebutted.” “ But,” say the court in Minkler v. Minkler (supra), “ we would hold this merely a natural presumption, as matter of fact, and imposing the duty upon him who asserted the contrary, to support his assertion by proof.” This rule was adopted in Betts v. Jackson (supra), and it prevails wherever any of the methods of revocation provided in the statute are used. Mr. Redfield, in his Law of Wills (Vol. 1 [4th ed.], § 25, subd. 8), says: “The rule of evidence in the ecclesiastical courts, in regard to presumptive revocations from *573the absence or mutilation of the will, seems to be, that if the will is traced into the testator’s possession and custody, and is there found mutilated in any of the modes pointed out in the statute for revocation, or is not found at all, it will be presumed the testator destroyed or mutilated it cmimo revocandi.” (To same effect, 1 Jarm. Wills [5th Am. (Rand. & Tal.) ed.], 290.)
As early as 1775 the Common Pleas, in Bibb v. Thomas (2 Wm. Slack. 1043), held that if any of the methods provided by the Statute of Frauds (29 Car. II, chap. 3, § 6) for the revocation of a will is performed in the slightest manner, this joined, with the declared intent, will be a good revocation. In Hobbs v. Knight (1 Curt. Ecc. 768) a will was propounded with the testator’s signature cut out. The Prerogative Court of Canterbury, per Sir Herbert Jenner after observing that the signature of the testator is so necessary to the validity of a will that the will cannot exist without it, held that the excision of the signature amounted to a revocation. This was in 1838, after the new statute (1 Vict. chap. 26, § 20), in which the words “ cancelling ” and “ obliterating ” had been omitted and “ otherwise destroying ” introduced instead. It has frequently been held that where a will is found among the testator’s papers with the seal torn off that the will was thereby revoked (Davies v. Davies, 1 Lee Ecc. 444; Lambéll v. Lambéll, 3 Hagg. Ecc. 568), even where a seal was not essential to the will. (Price v. Powell, 3 H. & N. 341; Avery v. Pixley, 4 Mass. 460.)
In the case of Dan v. Brown (4 Cow. 483) the court say: “ Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation.” (Citing Bibb v. Thomas, supra.) Matter of Philp (46 N. Y. St. Repr. 356) was an appeal from a decree of the surrogate of New York county, refusing to admit to probate a writing alleged to be a will, on the ground that the same had been canceled during the lifetime of the decedent. The will was found in a safe, the door of which was open during business hours, and when found lines had been drawn through the signature. The General Term of the first department held that there was a presumption of revocation, and that in the absence of evidence of improper treatment *574of the will or to explain the canceling lines, the surrogate properly refused probate. I think this case should be controlling in the case at bar.
An exhaustive review of the authorities on this subject is found in Probate of Will of Mary Ann Clark (1 Tuck. 445), where, upon the death of the testatrix, her will, duly executed, was found in her bureau drawer, with her signature and that of a legatee canceled. The surrogate of New York county, after citing many cases, gives the following review, which is altogether appropriate to our present discussion (p. 460): “ There is an absolute uniformity in these cases. They, all hold to the doctrine of legal presumption where the will is found mutilated in the possession of the decedent, or has disappeared after being last traced to his possession. It is nowhere held that the contestant, the party opposing probate, must account for the mutilation or disappearance of the instrument, or must show such injury to have been the act of the decedent.”
Turning now to the case at bar, the inquiry naturally arises, how did the proponent rebut the presumption of revocation ? Principally, I think, by introducing evidence which should never have been admitted, to wit, testimony of many witnesses as to declarations made by the testator regarding his testamentary intentions, and the opinion of Mr. Carvalho, a handwriting expert, to the effect that the testator did not make the cancellation marks. The first class of evidence was afterward stricken out by the surrogate, upon the authority of Matter of Kennedy (167 N. Y. 163), but he clearly placed much reliance upon the testimony of the handwriting expert. There was no question of disputed handwriting under chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888. By “writing,” the Legislature intended to include only what is ordinarily and naturally understood to be such e. g., “ 1. * * * The act or art of tracing or inscribing on a surface letters or ideographs. 2. The characters so made, collectively, especially with regard to shape or style. * * * 3. Anything written or expressed in letters. * * * 4. Law. A written instrument: words or characters that stand for words or ideas.” (Standard Diet.) The admission of this testimony is but another instance of the abuse of expert evidence. So notorious is it becoming that, if it is not checked, it seems to me that a reaction must event*575ually come that will abolish such testimony altogether. Many years ago Lord Campbell saw the danger from this source, when, in the Tracy Peerage Case (10 Cl. & Fin. 154, 191), he said, “ hardly any weight is to be given to the evidence of what are called scientific witnesses; they come with a bias on their minds to support the cause in which they are embarked.” In my opinion the admission of the testimony of the handwriting expert was necessarily prejudicial to the contestant, and constituted reversible error.
Aside from the testimony above referred to, the only evidence-which in any way tends to rebut the presumption of revocation is that before the will was found in the testator’s desk, that desk had twice been searched for it. These searches were made by Mr. Warren, a business associate of the decedent, who had a desk in the same office with Mr. Hopkins, and they were made in the presence of the widow and her brother, Mr. Chambers. Referring to the first search, Mr. Warren testifies : “ Then I went to his (testator’s) desk and made quite a thorough search throughout the desk without disturbmg the papers that were there, and failed to find the will.” Of the second search he testifies: “ They (Mrs. Hopkins and her brother) requested me to go through the papers again in the office very carefully. I went through them.” Some of the papers he laid in Mrs. Hopkins’ lap ; some he laid in piles, but it nowhere appears that the papers were returned to the identical drawers from which they had been taken. Continuing, he says: “ I thought that I looked through that desk very thoroughly, and did not find the will.”
Who has not, more than once, searched a desk or other receptacle several times before finding the desired object in a place already supposed to have been very carefully examined % A few hours later, going to the same desk for a check book, Mr. Warren, without apparent reason, opened one of the small drawers of the desk and at once noticed the will in the same condition as it afterward appeared when offered for probate by the widow. There is no suspicion that any of those present while the second search was going on surreptitiously slipped the will into the drawer in which it was found soon after, nor is there a scintilla of evidence that any other person then, or at any other time did so. I cannot believe that the fact *576that two fruitless searches were made before the discovery of the will is sufficient to rebut the presumption of revocation arising from its discovery where and in the condition in which it was found.
The fact that the signature to the will was written in a trembling hand, while the canceling pen strokes were made in a decided manner, does not tend to rebut the presumption of revocation. During the ten years following the tremulous signature, and up to the time of his death, the testator continued in the possession of all his faculties and conducted business interests of considerable magnitude. He signed many bank checks and the testimony shows that no difficulty was ever experienced in reading them. Certainly the evidence does not show that the hand with which he was accustomed to write was palsied or in any way incapacitated to such an extent as to prevent him from making the crude strokes which canceled his signature on the will. If it had been, it is almost certain that he would have delegated the power to sign his checks, but the testimony of his bank president shows that he did not do this. Indeed, so simple in character, so easy of execution, are these strokes, being nothing more than fourteen slightly prolonged, downward jabs with a well-filled pen, that I am convinced that the testator could have made them with either hand, even though he were far from being ambidextrous.
So far as the evidence shows, the only person who will profit by the revocation of the will is the infant son, who was about thirteen years of age at the time of his father’s death. It is inconceivable that he was concerned in a fraudulent destruction of the will, and it is not suggested that any one was so interested in his behalf. The widow would take very much more under the will than otherwise. When the will was executed, the son, who bore his father’s name, was but three years of age. Before he died, the testator gave largely to all the churches of Tarrytown, to Pompey, the town of his birth, and to other institutions and places, and rendered financial assistance to distant relatives. After all this beneficence, is it strange that he should finally decide to let the law take its course and thus to allow the bulk of his property to pass to his only child, Robert E. Hopkins, Jr., then growing into manhood ? If he did so decide, then, to carry out his intention, the law required no more *577than that he should cancel the signature to his will with the intent to revoke it. And we cannot presume that he did not know the law.
The extent to which the learned surrogate was misled is evident from the following sentence taken from his opinion: “ I find no authority going to the extent of holding that where a will floats into the surrogate’s office from an unknown source, or is found in the possession of strangers with the signature cancelled or obliterated without other evidence, that there is any presumption that the destruction or cancellation was by the hand of the testator.” Undoubtedly, there is no presumption of revocation in such a fancied situation, but the facts are there given antithetically.
Large estates and the overweening cupidity of individuals and institutions, whose interests the testators when revoking their wills were so careless as not to consult, seem the only explanation for much of this sort of litigation which has found too much encouragement in probate courts.
The presiding justice seems to assume that an intelligent man, who has once executed a carefully drawn will, does an extraordinary thing if he ever after cancels it, “ not,” says he, “ 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.” Witnesses are not required when the canceling is done by the testator with his own hand, nor are any formalities provided by the statute in such cases. (See the statute, supra.) No obligation, legal or moral, rests upon one who has revoked his will, either to" execute another or to leave any written explanation. The statutes of descent and distribution have long and properly been relied upon in such cases. In regarding as a final act the execution of the will ten years before the death of the deceased, my learned associate appears again to forget that a will is always ambulatory until the death of the testator. (Dodge v. Cornelius, 168 N. Y. 242.) After stating that the only evidence on the subject of revocation by cancellation “is such as may be inferred from the production of the will itself with the. canceled signature,” he declares that “ all the probabilities derived from the circumstances” are against revocation, but probabilities will not prevail against presumptions of law. *578The probabilities he sets forth are : First, the execution of a suitable will; second, its existence for ten years, and third, its production before the surrogate without any change except the canceling marks. The first two do not appeal to me, while in the third I see something more than a probability of revocation. (Matter of Philp, supra.)
There are in this case no circumstances indicating fraud, nor is the finger of suspicion pointed toward any one concerned in it, yet, if we affirm the decree of the surrogate, we, in effect at least, presume fraud, which is generally matter of proof. The language of the vice-chancellor, in the case of Wynn v. Heveningham (1 Coll. Ch. 630), a case of revocation by cancellation, seems peculiarly appropriate in the present case. He says: “ The next remark, whatever may be its weight, is of a nature sufficiently obvious, namely, that the admitted circumstances, the absence of any proved misconduct, and of any suspicious conduct on the part of any person in particular, and the absence of any slur upon the reputation of any one person concerned, rendered the alleged fact that the lines were made after her execution of the will neither by herself nor in her presence, one of an improbable kind.”
“ He who seeks to establish a lost or destroyed will,” say the court in Collyer v. Collyer (110 N. Y. 481, 486), “ assumes the burden of overcoming this presumption (of revocation) by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show, by facts and circumstances, that the will was actually, fraudulently destroyed.” If evidence is insufficient to overcome the presumption of revocation when it shows that persons who will profit by the intestacy have had an opportunity fraudulently to destroy a will, how much more inadequate is the proof of the proponent in the case at bar, where the only person interested to establish intestacy could not have been more than thirteen years of age at the time of the alleged fraudulent cancellation. In the case last cited the Court of Appeals also approved Loxley v. Jackson (3 Phil. Ecc. R. 126), a case of presumed revocation, where it was held that the law did not presume fraud and that the burden of proof was on the party claiming under the will.
It is true that if the will is allowed to stand many deserving *579interests may be benefited and much good accomplished, and if probate is denied, the son, upon reaching maturity, may dissipate the large share of the estate which in that event he will receive. But these are considerations which have nothing to do with the case and should not be allowed to lead us from well-established precedents which form an unbroken line of authority.
I think the decree of the surrogate should be reversed.
Jenks, J., concurred.
Decree of the Surrogate’s Court of Westchester county affirmed, with costs to the proponent and the special guardian and to each other respondent, payable out of the estate.