In considering this will, it must be remembered that it speaks as of the time of the testator's death, twenty-four years ago. What has happened since was necessarily unknown to him at the time. He did know that, if he died then, he would leave young children to be cared for; also his widow. While she remained his widow, he meant she should be cared for, and, while his children remained minors, he meant they should be cared for; and I can discover no reason existing at the time why that solicitous care he felt for his minor children should not extend to the distribution of his estate, except the one above mentioned. It is true that, if the widow remarried, or died, shortly before the youngest child became of age, the reward would seem large; but if Thomas was to enjoy the benefits provided for him under the will, he was restricted from other undertakings and occupations and must at all times hold himself in readiness to comply with the terms of the will. Thomas did remain on the farm and served his mother faithfully for thirteen years, till he was about thirty years of age. The court, therefore, if at liberty to make a fair distribution of the estate, would be inclined to make him some allowance for services, but the court must confine itself to construing the will; it cannot make a new will. The present will, construed as above, complies with the intent of one "desirous of making an equitable and proper disposition of my property at my decease." It provides for the support of his widow and minor children, and, as the events have occurred, leaves the remainder equally to his children, the natural objects of his bounty. This

the law favors.

A decision may be prepared in compliance with the stipulation of the parties and with this memorandum.

In the Matter of Proving the Last Will and Testament of URSULA A. KENT, Deceased.

BETSEY C. ADAMS, Contestant, Appellant; TRUST AND DEPOSIT COMPANY OF ONONDAGA, as Executor, etc., of URSULA A. KENT, Deceased, and Others, Respondents.

(Supreme Court, Appellate Division, Fourth Department, October 6, 1915.)

WILL-PROBATE EVIDENCE AS TO CONTENTS OF PARAGRAPHS CUT FROM WILL BY TESTATRIX-HEARSAY-RES GESTAE-WHEN SUBSEQUENT MOTION TO STRIKE OUT INCOMPETENT EVIDENCE SHOULD BE GRANTED ATTEMPTED CANCELLATION OF PARTICULAR CLAUSES OF WILL-EFFECT OF FAILURE TO ESTABLISH CONTENTS OF PORTION OF CLAUSES CUT FROM WILL.

Where in a proceeding for the probate of a will it appears that the testatrix during her lifetime had cut and completely removed a paragraph containing a money legacy, and also a part of the residuary clause, and that these portions of the will have not been found, evidence by a neighbor of the testatrix based upon a conversation with her about three months after the date of the will, as to the contents of the missing parts, is hearsay, incompetent and no part of the res gestae.

The fact that such testimony was not objected to when offered is no objection to a subsequent motion to strike it out, where it appears that the proponent of the will was in no way prejudiced by the delay, or that if the objection had been seasonably made it could have been at the time obviated, or other evidence produced to prove the contents of the missing parts.

Even if the testimony of the neighbor of the testatrix had been competent, it was insufficient to establish the contents of the missing clauses of the will, where the only other testimony was that of the attorney who drew the will, who could only remember that the one clause contained a money legacy for some amount "in the thousands" in favor of a certain beneficiary.

If, upon a new trial, which must be granted, the contents of the missing parts are established the will should be probated, including the missing parts; but if such parts are not established then the portion of the will which remains should be probated.

Since attempted cancellation of particular clauses of a will by their obliteration is ineffectual to revoke such clauses, the remaining portion of the will may be probated, even if the contents of the obliterated parts

cannot be ascertained, unless it can be seen that the missing parts will affect or alter the remaining parts.

If the contents of the portion of the residuary clause cut from the will in question cannot be ascertained, then there will be intestacy as to this portion of the residue, for a lapsed or ineffectual gift of a portion of the residue does not fall into or become a part of the remaining residue.

If the money legacy cut from the will fails because its amount and donee cannot be ascertained, such unknown amount will sink into the residue as in the case of a lapsed legacy.

ROBSON, J., dissented.

APPEAL by Betsey C. Adams, one of the heirs at law and next of kin of Ursula A. Kent, from a decree of the Surrogate's Court of the county of Onondaga, entered in the office of said Surrogate's Court on the 4th day of February, 1915, admitting to probate a paper propounded as the last will and testament of Ursula A. Kent, deceased, including missing parts thereof which the surrogate found had been cut from the will by the testatrix in her lifetime, without intent on her part to revoke the whole will, but only the parts so eliminated.

Daniel A. Pierce, for the appellant.

Joseph B. Murphy, for the respondents Ross King and others.

A. H. Cowie, for the respondent Trust and Deposit Company of Onondaga, as executor.

FOOTE, J.- On March 9, 1911, Ursula A. Kent made her last will and testament consisting of fourteen separately numbered paragraphs. A few days after her death on July 10, 1913, the will was found locked in the drawer of a bureau in

what had been her sleeping room. It then appeared that the paragraph numbered 6th, and a part of the paragraph numbered 10th, being the residuary clause, had been cut and completely removed from the will.

The learned surrogate has found as a fact that those clauses if cut from the will by the testatrix in her lifetime was with the intention of revoking such clauses only and not of revoking the will as a whole. He has also found that the 6th clause contained a legacy of $2,500 each to Ross L. King and Bruce L. King, and that the missing part of the 10th or residuary clause gave to each of these men one-fourth of the residue of her estate. He has held as matter of law that the cutting of these two clauses from the will did not effect their revocation, and he has admitted the will to probate, including the missing clauses, as he finds their contents to have been.

Betsey C. Adams, one of the heirs at law and next of kin of testatrix, filed exceptions to the surrogate's findings of fact as to the contents of the missing clauses, on the ground that there was no evidence to support such findings, and to the conclusions of law, and has appealed to this court both upon the law and the facts.

The missing parts cut from the will have not been found. Mr. Cook, the attorney who drew the will, could recollect that the missing 6th clause contained a money legacy for some amount in favor of Ross King and that its amount was "in the thousands;" further than this, he had no recollection as to the contents of the missing parts. The testimony upon which the learned surrogate based his finding as to the contents of these missing parts was given by Margaret Gibbs, who was housekeeper in a college fraternity chapter house next door to Mrs. Kent's residence. She had known Mrs. Kent for about six years and was on friendly terms with her. They saw each other frequently at one house or the other. Mrs. Gibbs testifies that about three months after the date of the will at Mrs. Kent's house Mrs. Kent told her that she had, by her will, left a legacy of $2,500 to Ross King and the same amount to his brother, Bruce King, and they were to have one-fourth of what was left after the other legatees were paid. She also

testifies that there were several other similar conversations before Mrs. Kent's death in which Mrs. Kent made the same statement in substance.

No objection was made to this testimony by appellant's counsel at the time it was given, but at a subsequent hearing, before the submission of the case, a motion was made to strike it out as incompetent and no part of the res gestae. This motion the surrogate denied "for the present," with a statement that "Before disposing of the case or at the time of disposing of it, if I think it should be struck out, I may then do so." In his written opinion (89 Misc. Rep. 16) the surrogate holds that the objection to Mrs. Gibbs' testimony came too late and for that reason adhered to his ruling refusing to strike it out. On that testimony, with the testimony above referred to of Mr. Cook, he has based his findings as to the contents of the missing parts of the will.

The testimony of Mrs. Gibbs was clearly hearsay and incompetent. (Smith v. Keller, 205 N. Y. 39; Lipphard v. Humphrey, 209 U. S. 264; Matter of Kennedy, 53 App. Div. 105; 167 N. Y. 163; Clark v. Turner, 50 Neb. 290; 38 L. R. A. 433 and note.)

If this testimony had been objected to when offered, it would have been the duty of the surrogate, in view of the above authorities, to sustain the objection and exclude the testimony. It is not claimed that the proponent of the will was in any way prejudiced by the delay in making the objection, or that if the objection had been seasonably made, it could have been at the time obviated or other evidence produced to prove the contents of the missing clauses of the will. Under these circumstances, we think the surrogate should have granted the motion to strike out Mrs. Gibbs' testimony. (Miller v. Montgomery, 78 N. Y. 282.)

We are also of opinion that the testimony of Mrs. Gibbs, if allowed to remain in the case, is not of sufficient probative