"Second. I hereby appoint my friend, Mr. Walter Lee Crow of 13 East 126th Street, New York City, as executor of my Last Will and Testament, and under this my Codicil thereto, in place and stead of William K. O'Brien, who is now deceased.

"All of the other provisions of my said Last Will and Testament, executed by me on the 25th day of January, 1898, I hereby re-affirm, re-publish and again declare to be, together with this Codicil, my Last Will and Testament. "In Witness Whereof I have hereunto set my hand and seal this seventeenth day of March, 1899. Isaac P. Francis. [Seal.] "The foregoing instrument was on the day of the date thereof signed, sealed, published and declared by the above named Isaac Pickford Francis as and to be a Codicil to his Last Will and Testament dated the 25th day of January, 1898, in our presence and in the presence of each of us, and we in his presence and in the presence of each other, at his request, subscribed our names thereto as witnesses, this attestation clause having first been read over by each of us. "M. E. Merrifield, Continental Hotel, N. Y., N. Y. "Frank Dow, Continental Hotel, New York, N. Y."

At the time the codicil was executed, it was fastened securely by a tape to a paper writing, purporting to be the will of Isaac Pickford Francis, the ends of such tape, being imbedded in the waxen seal, impressed opposite the signature of Isaac Pickford Francis, the alleged maker of the codicil. The seal on the codicil seems to have been formed by the use of a signet ring, cut as an intaglio and bearing, I think, the initials I. P. F. "That it was an expensive seal is apparent from the impression on the wax, but no testimony was offered to identify the seal. That it was Mr. Francis's own seal is, I think, evident. But no positive evidence is given as to the time when the seal was affixed to the codicil. The testimony of Mr. Morgan, the lawyer who prepared the codicil, is to the effect that the will and codicil were securely fastened together and placed under the same. cover; the tape so fastening them together being led with art under, and secured by, the seal to the codicil, when the latter instrument was executed. That Mr. Morgan's testimony is accurate is apparent from the condition of the papers propounded, provided no subsequent change was made by any one after the execution of the alleged codicil, and of this there is no proof. At the time the codicil was executed the paper propounded as a will was intact, uncanceled, and unrevoked, and apparently it had been duly executed as a will in conformity with the wills act (Consol. Laws 1909, c. 13), of this state. Mr. Morgan swears that the old will was intact at the time the codicil was executed, and that it then was not mutilated or canceled in any way, and he was present at the celebration of all the formalities attending the execution of the codicil. He it was who had fastened together the will and the codicil. This is certainly very good evidence. It was taken without objection, and I think established that the instrument purporting to be the will of Isaac Pickford Francis was actually fastened to the codicil at the moment the latter was executed or attemped to be executed.

Were it not for the condition of the paper propounded as a will, hereafter considered by the surrogate, the testimony offered to prove the execution of the codicil is sufficient prima facie to establish that writing as a testamentary instrument under the statute of wills. Mr.

Merrifield, one of the attesting witnesses to the codicil, is alive and gave testimony in support of the execution of the codicil. The other attesting witness to the codicil, Frank Dow, as it is claimed, is since deceased. A certificate of the death of Frank Dow, made by the department of health, bureau of vital statistics, and sealed with the seal of the department of health, was allowed by the surrogate to be given in evidence, over an objection that the proponent must first establish the identity of the deceased and the attesting witness. Certainly the legal presumption is that the death certificate refers to the same person, and the objectors offered no testimony to the contrary. The question of the regularity of the proof of the death of Mr. Dow is not before me, but I cannot forbear referring to the statutes which seem to afford some authority for the introduction of the certificate and record of his death. Section 5 of the public health law (Consol. Laws, 1909, c. 45) provides for the bureau of vital statistics in the state department of health, and that a copy of any record in the state department of health, duly certified by the commissioner to be a true copy thereof, shall be presumptive evidence in all courts and places of the facts therein stated. Section 933 of the Code of Civil Procedure seems to authorize the deputy commissioner to make such certificate. Public Officers Law (Consol. Laws 1909, c. 47) §§ 9. 66. The certificate in this case seems to comply with the law. Code Civ. Proc. § 957. It states that the deputy commissioner has compared the copy of the certificate of death of Frank Dow with the original certificate as filed in the bureau of vital statistics of the state department of health, and that the same is a true copy and a transcript therefrom, and of the whole thereof. Keefe v. Supreme Council, 37 App. Div. 276, 278, 55 N. Y. Supp. 827; City of New York v. Vanderveer, 91 App. Div. 303, 309, 86 N. Y. Supp. 659. Under the circumstances, it would seem that the death of Mr. Dow, the subscribing witness, was sufficiently established in the absence of proof of his existence.

The handwriting of the deceased attesting witness to the codicil was amply proved. Thus we have to prove the codicil, the testimony of the subscribing witness who was alive at the time of the probate, also the testimony of the lawyer in actual attendance at the execution. of the will, and a full certificate of attestation of the codicil signed by Mr. Dow, the deceased attesting witness.

[1] The testimony of the lawyer (not an attesting witness) who drafted the codicil and was in attendance at the celebration of the formalities required by the statute of wills for the formal execution of that instrument was taken before my predecessor without objection of counsel. As an original proposition I might have ventured to think such evidence was competent. The celebration of the formalities required for the execution of a will I should have taken to be public, and not a private act. The execution of a will is open; and by its very nature it is neither private nor confidential. It is an act in which the state has the supreme interest, and the witnesses should not be immune from disclosing a noncompliance with a public statute of great significance. "Testamenti factio, non privati, sed publici juris

est," was the rule of the civil law, adopted by the ecclesiastical courts of England, where such testimony was never held confidential or incompetent. Such was once the rule of this jurisdiction. But the construction formally placed upon section 835 of the Code of Civil Procedure directed wholly to confidential communications and advice leaves me, I think, no alternative but to reject the consideration of such testimony. Matter of Cunnion, 201 N. Y. 123, 94 N. E. 648.

[2] But while I must disregard the testimony of the lawyer relating to such execution, as it was taken contrary to the existing law, yet I may take notice of his actual presence and avail myself of the established presumption which such presence affords. Had Mr. Morgan not been called to the stand, his very presence at the execution of the codicil would afford some presumption of its compliance with the statute of wills. Matter of Cottrell, 95 N. Y. 339; Worden v. Van Gieson, 6 Dem. Sur. 238, 239; Matter of Walker, 67 Misc. Rep. 6, 124 N. Y. Supp. 615; Matter of Nelson, 141 N. Y. 152, 157, 36 N. E. 3. So the certificate of attestation, being full and complete, subsigned by the attesting witnesses and attached to the codicil, is entitled to be considered as affording a presumption of regularity in the execution of the codicil. Matter of Cottrell, 95 N. Y. 338, 339; Matter of Balmforth, 60 Misc. Rep. 492, 113 N. Y. Supp. 934.

That the paper propounded as a will and bearing date the 25th day of January, 1898, was originally executed in compliance with the statute of wills, is, I think, made out in the absence of proof to the contrary. Both of the attesting witnesses were dead at the time of the offer to probate the will, but their death and their signatures to the certificate of attestation annexed to the will were sufficiently proved on the hearing. The attestation clause or certificate, stating that all formalities required by the statute of wills were complied with, is under such circumstances sufficient prima facie evidence that the will was executed in due form. Brinckerhoff v. Remsen, 8 Paige, 488; Matter of Sizer, 129 App. Div. 7, 10, 113 N. Y. Supp. 210; Matter of Abel, 136 App. Div. 788, 792, 121 N. Y. Supp. 452.

In an ordinary cause, when the original will is duly executed under the statute of wills then in force, the codicil operates to republish such will (Loveless on Wills, 373; Brown v. Clark, 77 N. Y. 369), although, at present, it is intimated that a codicil may not so operate, if the will it refers to was not duly executed under the existing statute of wills. Matter of Carll, 38 Misc. Rep. 471, 77 N. Y. Supp. 1036; Matter of Emmons, 110 App. Div. 701, 96 N. Y. Supp. 506. Upon the latter point of law I cannot now express an opinion, as it is not before me for adjudication, at this time. Much might be said. on it. See Matter of Weston, 60 Misc. Rep. 275, 113 N. Y. Supp. 619, affirmed 131 App. Div. 901, 115 N. Y. Supp. 1149; Booth v. Baptist Church, 126 N. Y. 247, 248, 28 N. E. 238.

Had the paper called the "will" been in the same condition at the time it was offered for probate that it was in when the paper propounded as a codicil was executed, both instruments would now, for the reasons before stated, be entitled to be probated. But the will was not in its original state when both of such alleged testamentary pa

pers were filed for probate and this cause brought on for hearing. Hence a question of revocation of the will is presented to the surrogate, together with a contention on the part of the objectors to the probate that, the will being revoked, the codicil has no independent existence, and that standing by itself the codicil is not probative. Such are the real questions which the surrogate must proceed to consider in this cause.

[3] In resisting the probate, it is competent upon general principles for the objectors to introduce any proof which shows that the papers propounded are not valid and subsisting testamentary instruments. Nelson v. McGiffert, 3 Barb. Ch. 158, 49 Am. Dec. 170. As a will is ambulatory until the death of the testator, it is always subject to revocation until the demise of the intending testator puts a natural end to animus revocandi, which is, in all cases, essential to the act of revocation.

[4] When a paper presented for probate bears upon its face marks which tend to impair it, the apparent infirmity must be considered by the surrogate on the affirmative offer to probate. The alleged testamentary writing is offered subject to such infirmitiy, and, as it is said in such a case, "the paper speaks for itself." In Goods of Perry, 4 Notes Cas. Ecc. Cts. 402, 404. The surrogate on a probate proceeding is bound to take notice of defects, and also of a noncompliance with the statute of wills, apparent on the face of papers propounded. An inspection of documents presented to the surrogate for his action is obligatory. Such defects are then a species of real evidence, competent in any tribunal under certain circumstances, and especially competent in the courts of the surrogates where the proceeding to probate is on the paper itself. Neither courts nor juries can be expected to close their eyes to what is apparent to them on an inspection during a trial. Good sense precludes their so doing as contrary to human action and general experience. It is, I think, the rule that defects apparent on the face of a paper propounded as a will must always be taken note of on a probate, and that the surrogate is bound to inquire in the first instance concerning such apparent defects. Matter of Wilcox, 131 N. Y. 610, 30 N. E. 101; Matter of Barber, 92 Hun, 489, 37 N. Y. Supp. 235; Matter of Gibson, 128 App. Div. 769, 113 N. Y. Supp. 266; Beaty v. Beaty, 1 Add. Ecc. Rep. 154; Matter of Clark, 1 Tuck. 445, 460. To be sure such defects may be explained away by competent evidence, but, unexplained, they must be considered by the surrogate quantum valeat, and before any probate can be decreed. Code Civ. Proc. § 2622.

[5] We come now to the consideration of the real question in this cause the revocation of the paper propounded as a will, and its effect on the codicil. At the time the typewritten papers propounded as a will and codicil were filed and offered for probate, such "will" was not in the condition it was in when executed, or immediately after execution; nor was it even in the condition it was in when the paper propounded as a codicil was executed. The signature of Isaac Pickford Francis had since then been cut out of the so-called will, with the exception of the first three letters of such name. Blue pencil

lines had also been drawn diagonally across the first 12 lines of such paper, beginning with the words, "This is the Last Will and Testament of me, Isaac Pickford Francis of the City and County of New York, New York State." A few words in the body of the alleged will were wholly missing, owing to the excision of the signature on the reverse side of the sheet. Finally, on the last sheet of this paper called the will, were written just above the clause called the "in testimonium," and across the clause appointing executors, the following words in blue pencil, viz.: "Canceled by I. P. Francis." The paper annexed to this will and termed the "codicil" was, however, intact at the probate and in the same condition it was in immediately after execution. It had not been canceled, cut, or disturbed in any way by

any one.

The uncontradicted testimony taken at the hearing discloses that, after the execution of the codicil, the two testamentary papers, united together as stated above, and respectively termed the "will" and the "codicil," were taken away by Isaac Pickford Francis himself. Thus we have the papers traced into the possession of the testator himself. It is in evidence that they were then intact, uncanceled, and unaltered. It seems that a copy of the same was sent to Mrs. Shults, one of the legatees, a fact quite unimportant to the issue. It appears that the original testamentary instruments may have been placed by Mr. Francis in a blue envelope and sealed five times with his private seal before mentioned. This envelope was indorsed as follows:

"Last Will and Testament of Isaac P. Francis, placed in the care of Mrs. Mary E. Crow of No. 13 East 126th St. (Harlem) New York City, by I. P. Francis March 20, 1899."

The handwriting on this envelope was proved to be that of Mr. Francis himself. That the alleged will and codicil were actually contained in the envelope is only presumptive. If they were not, they presumptively remained in the custody of Mr. Francis himself, and this is the important point. The envelope in question on the death of Mrs. Crow, the depositary, was found in her safe deposit box, sealed and unopened, and by her son it was handed sealed to Mr. Francis, the maker of the testamentary papers propounded. On the death of Mr. Francis, the papers propounded were in any event discovered among his effects, the envelope opened at the end, and the papers. themselves in the condition described by the surrogate. In that condition they were filed and propounded as the will and the codicil of Isaac Pickford Francis. There is no other proof besides that already stated that the cancellation, destruction, or mutilation described was the act of Mr. Francis himself. What then is the presumption and effect of the present condition of the instrument termed the will; they having been traced intact into the custody of Mr. Francis?

The testamentary papers presented as a will and codicil for probate, being last in the custody of Mr. Francis himself, are to be presumed to have been altered by him animo revocandi, and by no one else. Matter of Hopkins, 172 N. Y. 360, 363, 65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 746; Matter of Clark, 1 Tuck. 445, 453, and cases there cited; Matter of Brookman, 11 Misc. Rep. 675, 33