In re Forbes' Will

Barnard, P. J.,

(dissenting.) The facts are very clear. The testatrix made a will 'some fo.ur years before her death. This will exhibited an estrangement between her and one of her children. This child was deprived of a share in the estate, which was about $26,000. A few days before her death she sent for her attorney, Mr. C. J. Patterson, who had drawn her will. Mr. Patterson was in Europe, arid one of his clerks in his office responded to the call. He saw the testatrix, and was instructed to draw a will, and make this disinherited child even with the others. The clerk made such *461changes as he supposed would do this, and he read the will over to the testatrix, and she executed it. She was about 84 years old, and died four days thereafter. The will did not in point of fact carry out the intention of testatrix. The formal execution of the will under these circumstances should not be deemed to establish an execution by a free and capable testator, who understood its contents. The changes were misleading when made, and the essential change to carry out the. testatrix’s pian was not made at all. She relied on her lawyer, and did not have sufficient mental power, from her age and from her mortal sickness, to comprehend the will. It was executed under a mistake. If the whole will was not understood, all of it fails, even if the bequests in it were intended when given to other persons than this disinherited son. The will is an entirety, although the surrogate’s court in New York admitted a will to probate, striking out that portion executed under a mistake. Burger v. Hill, 1 Bradf. Sur. 360. I think the will ought not to be admitted to probate. The former will is proven to have been destroyed, and revoked thereby. The will should be refused probate, and letters of administration issued, as in case of intestacy, with costs to both parties out of the estate.