The questions involved in this case have been elaborately discussed by the learned surrogate who admitted the will of the late Robert E. Hopkins to probate (Matter of Hopkins, 35 Misc. Rep. 702), by the learned presiding justice of this department and in. a dissenting opinion on a former appeal (73 App. Div. 559, 571), and by the Court of Appeals (172 N. Y. 360), and very little is left open for consideration in this appeal from an order of the Trial Term denying the contestant appellant’s motion to set aside the verdict directed by the court and for a new trial. Originally the will was admitted to probate; this court, with two justices dissenting, affirmed the decree of the surrogate, and the Court of Appeals unanimously reversed this court and directed that the issue, whether the will was revoked by the testator, be tried before a jury. The case was once tried before a jury, resulting in a verdict sustaining the will, but the judgment was reversed on grounds in nowise affecting the merits of the case (97 App. Div. 126), and having been tried a second time, and on motion of counsel for both parties to direct a verdict, the court directed a verdict sustaining the will, and from an order denying a motion to set aside this verdict and to grant a new trial, appeal comes to this court.
The salient facts in the case, as stated by Haight, J., in writing the opinion of the court on the former appeal (172 N. Y. 360), are as. follows : “ Robert E. Hopkins died at Tarrytown in this State on the 9tli day of May, 1901. He was possessed of a large estate, and left him surviving Fanny W. Hopkins, his widow, and Robert E. Hopkins, Jr., his son, of the age of thirteen years, his only heirs at law and next of kin. He in company with other gentlemen *870organized the- Tide Water Oil Go. and the Tide Water Pipe Co., and the greater portion of his time was occupied in attending to the business of those companies.' His desk and office was* in a room of the . building in the city of Hew York in which the business of the companies was chiefly transacted. He had two' safe deposit vaults, one in the city of Hew York and the other at Tari-ytown, and it was his custom to keep his valuable papers in one of,. those vaults., After his death a search was made for his will. It was not found in either of the sáfe deposit vaults, but the paper now propounded as his will was finally found the'second or third day after his funeral in á little drawer under his roller-top desk'in his office. When found his signature was canceled . by fourteen nearly perpendicular marks with pen and ink drawn across the letters of his signature. The paper is. dated the 14th day. of Hovember, 1891, and undoubtedly it. was executed as his last will and testament at that date. And the only question of fact presented for the determination of the court is as to whether his signature thereto- was canceled by him with the intention of revoking the will.”' . " '
Commenting upon this state of_ facts the learned court say : “The finding of the will in the testator’s desk with his'signature canceled raised the presumption that the cancellation was done by him with the intention of revoking it.” (Citing authorities.) The question presented upon- this appeal is whether the evidence offered by the proponent' in support'of the will was sufficient to overcome ' this presumption, for it cannot be doubted that the will, if at all times, in the legal possession or custody of the testator; must stand or fall by its condition when found. ■(Matter of Hopkins, 172 N. Y. 363, and authorities there cited.) Both parties asked for a direction of a verdict, at the close of the trial, neither of them making any subsequent request to go to the jury upon any questiqn of fact, and upon this appeal the verdict directed by 'the court must have the same force" and effect as would be the case had the jury actually deliberated upon the issues. What then are the facts which were presented to the court to overcome the presumption of cancellation %
Mr. Hopkins, the testator, was born in Pompey, N. Y., March 24, *8711833, and was a. successful business man. He went to Titusville, Penn., in the course of his business experiences, and in 1878 joined with a Mr. Benson and a Mr. McKelvey in the formation of the Tide Water Pipe Company, and ten years later these same gentlemen organized the Tide Water Oil Company, Mr. Hopkins being chosen secretary and treasurer of both companies. He subsequently resigned the treasuryship, but retained the office of secretary down to the time of his death, having a desk in the office of the companies at 12 Broadway, Hew York city. Mr. Benson died some years ago, and Mr. McKelvey became a paralytic and had not spoken for a period of eight or ten years, so that Mr. Hopkins became the sole active survivor of the original company. Mr. Hopkins married the proponent (then Fanny W. Chambers) at Titusville on the 17th day of February, 1886, and their only child, Robert E. Hopkins, Jr., in whose behalf the special guardian is contesting the probate of this will, was born on March 25, 1888. Two years later the family removed to Tarrytown, where, after the death of Mr. Hopkins, the-widow and her son continued to reside.
The will in question was executed on the 14th day of Hovember, 1891, at Tarrytown, and was drawn by Mr. McKelv.ey, being executed in his presence. Mr. McKelvey acted as the attorney of Mr. Hopkins in the matter and after the execution of the will took it away with him, but there is no reason to suppose, and it is not suggested, that this possession of Mr. McKelvey, the attorney and intimate business associate of Mr. Hopkins, was not the possession, in law, of the testator. The absolute integrity of Mr. McKelvey is nowhere questioned, and all. parties seem to rely upon this much in common. There is absolutely no evidence in the case to show that any person other than the testator and Mr. McKelvey ever saw this will from the day of its execution in Tarrytown until it was found, where the proponent and her brother had searched for it, among other places, in the testator’s desk in the office of the Tide Water companies on the 14th day of May, 1901, ten years after its execution, and five days after the death of the testator. Clearly this will is brought within the rule that where the will is traced into.the testator’s possession or 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 *872it, animo revooandi but if it was last in the custody of another, it is, incumbent, upon the party asserting revocation to show the will again in the, testator’s custody,, or that it was destroyed or mutilated by his direction. (Matter of Hopkins, 172 N. Y. 363,. 364, and authorities there cited.),- There is nothing in the case to indicate that this, will was ever in the custody or possession of any other than, the testator or his, attorney, except that it is. in evidence that the proponent, with the aid of her brother and one Warren, Who occupied a desk in the same room, with the testator during his, lifetime, and who continued in the office subsequent to- his, death, searched.this, desk on two, separate: days, the last time on the 14th. day of May, 1901, without finding the will, and that, some two or three hours later Mr.. Warren, ip. going to the desk for the purpose of writing-a check, opened a drawer and found the envelope containing the will, which it is conceded Was canceled in the manner. heretofore pointed out at the time it was thus found. , It is true that, the evidence points, out a somewhat thorough search of the. desk,, but. it is such' an easy matter for three persons, engaged in the work to assume that some of the others, have opened a particular drawer, or to-overlook .its existence entirely, that it can hardly be considered conclusive evidence that the will was. not in this drawer at,the tune that the proponent and the others, were making the. search.'. In fact,, if Mr. Warren- had been quite sure that this drawer had-been examined, why did he open it on the occasion of his later visit, to the desk. He does not give any reason for opening the drawer; it does-not appear to have- been at all necessary for any purpose that he was -there, for at. that time,' and. the. only reason which suggests itself why he should have opened this particular drawer at this particular time was that he did. not feel certain that the search had covered this .particular place. When the will was found the only otlier articles in the drawer were -some pens, and an eraser, and it hardly seems probable that any. one placing the will in there would have taken tlie pains to place these trifling articles in "with it, and yet there is no suggestion in the evidence that the searchers- found this-drawer empty or- with these articles alone in it, -a situation, which must, have excited comment if it had , existed 'in a desk which had long been in use, and which appears to have been well filled with papers, memoranda, etc. It seems ■ to me entirely clear -that the *873probabilities are so strongly in favor of this drawer having been overlooked that it may be said that there was practically no evidence that the will had ever been out of the legal possession or custody of the testator. To reach any other conclusion we must believe that some person, and who that person might have been is' not suggested, unlawfully, and without apparent motive, canceled the signature upon this will, when he might, with far greater safety to himself and certainty of accomplishing his object, have placed the same in his pocket and destroyed it utterly. The testator himself might have desired the will as a memorandum■ it could serve no useful purpose to one who was interested in causing its revocation, and the time and danger of discovery in making the marks are so ■out of proportion to that involved in the destruction of the will, if it was in fact out of the custody or possession of the testator, that it is doing violence to the law of probabilities to assume that these marks were made by any other than the testator, or that the will was in fact at any place other than in that drawer in his desk: at the very time that these searches 'were being made. To reach any other conclusion we must assume that some one, animated by no other desire than to wantonly thwart the will of the testator, ■deliberately committed a crime, taking all of the chances of being detected in placing the will in this drawer after Jibe search had been made, when he could have accomplished his pmpose with absolute certainty and in comparative safety by consigning the same to the lire, or by throwing it into the sewer. It is possible, of course, that this might have been clones but it is not probable, while if we regard the testator, who appears to have had possession or custody of the will during all .of the time, that elapsed between its execution and the time of finding the same, as having made the canceling strokes, an entirely rational course of action is manifest.
This view is supported by the fact that one of the legatees men- - tioned in the will had died; some of the specific legacies were not in existence; the testator had made personal gifts to some of the legatees since-the will was made, and his son had grown to the verge ■of manhood. With these changed conditions., with the laws of •descent and distribution making ample provision for his wife, for his estate was large, is there anything in the fact that he made a will in 1891 inconsistent with the idea that he might desire to can*874cel it in 1901 \ It seems to me entirely clear that the evidence in this case does not meet the issue; it shows the will in the custody or possession of the testator; it does not show that it was' ever out of his custody or control, and the will as- presented for probate is canceled by one of the'methods pointed out by the statute. (See 2 R. S. 61, § 42.) Under such circumstances the presumption of revocation by the testator is .in full force, and the verdict of the jury, not having the support of evidence, should be reversed.
The order appealed from should be reversed and a new trial granted, with costs, to the appellant to abide.the result of the final trial, . - .
Order denying; motion to set aside 'verdict and grant new trial affirmed, with costs.
Sio.