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In the Matter of the Probate of the Last Will and Testament of Esther Hull Tremain, as a Will of Real and Personal Property. Bank of New York and Trust Company (Now Bank of New York), as etc., Named in last Will and Testament of Esther Hull Tremain, Respondent Henry H. Jackson, Charles Tremain Jackson and Diana A. Tucker
Decree of the Surrogate’s Court, Westchester county, admitting to probate in its original form a script propounded as the will of the decedent, unanimously affirmed, with costs to the respondent, payable out of the estate. Our views on the ultimate and substantial=question here involved makes unnecessary the consideration of any other contention. No jury question existed in respect to the intent with which the markings on the script propounded were made.
No such question could arise unless and until it appeared that the markings were of such a character that they so affected such a vital part of the will as presumptively to effect a revocation. Here the markings did npt affect the will in its entirety or a vital part thereof, such as a signature, in either of which events a revocation -prima facie of the entire will would have been effected.
Assuming, therefore, that the markings placed on the script by the decedent were placed there with intent to effect a revocation, wh. ih* is all that a jury could find at the behest of the contestants, the markings wei i ineffectual to effect a revocation, and the script was, under the otherwise concede'! I facts, properly admitted to probate. (Quinn v. Quinn, 1 Thomp. & C. 437, 44 f'iwd Lovell v. Quitman, 88 N. Y. 377; Dec. Est.
Law, § 34.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ. [168 Misc. 549.]