Havens v. Van Den Burgh

Per Curiam. It was not offered to be proved that the testator ever saw or heard of the unexecuted paper. It was not in his hand-writing, and it did not appear when it was prepared, or why, if prepared at his request, it was not executed. There is a failure in the offer to connect him with the paper, and we cannot indulge in conjecture concerning it. If however it had ap peared to have been dictated by hini, it would not have had the effect claimed for it by the defendant.. Slight circumstances in some cases have been held sufficient to destroy the presumption of a revocation, arising out of a change in the testator’s family; but the acts set up in this case, if they have any bearing, tend rather to sustain than to detract from the legal presumption. The paper in question does not profess to be an addition to, or qualification of the will already made, but if executed it would have been a complete substitute for it. The sons were indeed to have the same property, including the premises in question, but with other and increased charges upon it; and the plaintiff was to be provided for. The paper affords no countenance to the idea that the testator preferred the.old will to the application of the law in cases of intestacy, in the disposition of his estate. The other evidence offered related to the acts of other persons, subsequent to the execution of the will and the death of the testator, which appear to have nobearing upon the question of revo [33] cation. Perhaps they might afford a ground of equitable relief to the defendant by compelling a return of what he had expended for the plaintiff; but upon the question of title they do not seem to be material. . New trial denied.