spring of a rational, self poised and clearly disposing mind." * * * "Whilst, therefore, the testamentary right should be carefully guarded and faithfully vindicated, the court should be vigilant to prevent, so far as it can, the abuse of that right, by withholding its approving seal from a document so unnatural and so questionable as to freedom and capacity as that now under its final consideration." Harrel v. Harrel, 1 Duvall, Ky., 203. "When the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest explanation." 1 Redfield on Wills, 515; Marx v. McGlynn, 88 N. Y., 358. "Direct evidence of her control in these matters, of her actual exercise of undue influence in procuring her will to be executed by him, could hardly be expected. The means of keeping the influence out of sight were too many and of too easy application. But when such is the array of circumstances, when such a result is attained without any more substantial apparent cause, we are justified in saying from the evidence that the only cause to be inferred which is in the least degree adequate to produce the result is a long continued, persistent, overpowering influence to which his condition rendered him peculiarly subject, and which she was as peculiarly in a position to exercise." Delafield v. Parish, 25 N. Y., 95. "Undue influence must be the influence exercised in relation to the will. It is not an influence in relation to other matters or transactions. But this principle must not be carried too far. When a jury sees that, at or near the time when the will sought to be impeached was executed, the alleged testator was in other important transactions under the influence of the persons benefited by the will, that as to them he was not a free agent, but was acting under control, the circumstances may be such as to fairly warrant the conclusion, even in the absence of evidence bearing directly on the execution of the will, that in regard to that also the same undue influence was exercised." Boyse v. Rossborough, supra. * * * "A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and will of the testator, probate must be refused." "It is not the duty of the court to strain after probate, nor in any case to grant it when grave doubts remain wholly unremoved and great difficulties oppose themselves to so doing." Delafield v. Parish, supra. I have here cited the authorities most favorable to the contestants; but, as stated in Cudney v. Cudney, 68 N. Y., 152, "To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influThere must be evidence that he did exert it and so con ence. trol the actions of the testator, either by importunities which he could not resist or by deception, fraud, or other improper means, that the instrument is not really the will of the testator." The exercise of undue influence is not a question of the age, the infirmities or the physical weakness of a testator, but of his strength of mind to resist the will of others. In determining the issue in a given case, the motive and opportunities for, and the means used for the exertion of the influence, the ability of the suspected party to assert and maintain his supremacy in his effort to stifle the impulses of natural affection or the desire to care for others in dispensing his bounty, are matters for consideration. In this case the decedent, though of middle age, in good health and of sound mind, was as submissive to the domination of his wife as though he were enfeebled by age, or were an invalid in the sight of death, and she, under such circumstances, had used the delicate arts of a refined womanhood to accomplish her sinister ends. The mental weakness of the decedent was that which was the result of a passive nature without the power of self-assertion against her overruling positive mind. A strong case is made by the contestants, and but for the important fact completely established, which to my mind is decisive in respect to the validity of the will, it would be rejected. It is probable that the scheme of reciprocal wills was the suggestion of the wife under the belief that she, being eight years his junior, would outlive him. The proofs show that it was she who dictated the gift to each of his children of the trifling pittance of $100 out of his estate. But if she was sordid and grasping, he was mean, as evidenced by his allowing his first wife to support his children from the time of their separation until his death. When the will was made he knew that his second wife had abundant means which he would take if her death preceded his, and he also knew that he had but a trifling present estate, and that what he gave was only an estate in expectancy, in value not more than onehalf of that of his wife. It was five years before the life tenancy of his mother was terminated, and he came into possession of the property left him as remainderman under his father's will. At any time previous to his mother's death, had he died, his wife would have taken only the small estate, if any, which he had. Had she died the day after the wills were made he would. have taken an estate which, at her death, is shown to have been worth $50,000. If the scheme of reciprocal wills was concocted by the wife, I am convinced that he acquiesced in it intelligently, and understandingly, and voluntarily, under the selfish belief that it would be greatly to his advantage if he outlived her. He was willing to take his chances. With her increasing habits of dissipation he might well believe that he would outlive her, and as his death only preceded hers by four months, if such was his belief, his calculation was not far from right. But he lived in fair health six years after the date of the instrument and never disavowed its provisions. At any time he could have formally revoked it, or could have made another by which his children, to whom he owed a parental duty, would have been provided for. That his thoughts had been turned to the subject is shown by the testimony of Mr. White, the draftsman of the instrument under consideration, to whom he stated that he wished to see him to make a new will. He neglected his opportunity or abandoned his purpose, and, as a consequence, one son is coldly shut off with a pittance, and the other, a helpless imbecile, is cruelly denied the sustenance to which the law of nature entitles him. His father's treatment of him was brutal. But, under the law, the injustice of a competent testator toward the natural objects of his loving kindness and bounty cannot affect the validity of his will, and I am compelled to hold that the contestants have failed to sustain their allegation of undue influence. A decree of probate may be presented. In the Matter of the Probate of the Will of SABRAH G. WOOD, Deceased. (Surrogate's Court, Chenango County, Filed April 5, 1889.) 1. WILLS-ERASURES. When an interlineation or erasure in a will is fair upon its face and entirely unexplained, there is no presumption, in the absence of suspicious circumstances, that it was fraudulently made after the execution of the instrument. 2. SAME-PRESUMPTION AS TO REVOCATION. Where a will is found carefully preserved among the testator's papers, with the signature erased, it is a fair and reasonable presumption that the erasure was made animo revocandi, and the will would be lacking in one of the statutory requirements; but when found with the signature carefully restored, no such presumption arises, and in the absence of proof by the contestants as to the time of erasure and restoration, the court will not presume that it was done after the execution of the will, and will admit the will to probate. George W. Hay and Will C. Moulton, for the ex'rs; Daniel T. Arbuckle, for Eva H. Roberts and Alice N. Harrington, contestants; I. S. & H. D. Newton, for Kittie A. Johnson, contestant. JENKS, S.-On the 20th day of July, 1864, the testatrix duly executed and published the will that is now offered for probate. The will was in her handwriting down to the concluding clause "In testimony whereof," etc., which, with the attestation clause, was written by one of the witnesses in the presence of the other witness. And at the time the will was executed, after the death of the testatrix, the .will was found at her residence in a locked drawer in her safe, which was also found locked. It was in an envelope with her name upon the outside in her own handwriting. The contestants object to the admission of the will to probate, on the ground that the paper offered is not her will. It is conceded that it is the same instrument that was duly executed as her last will; but it is claimed that at some time subsequent to its execution it was duly revoked by the testatrix, by the erasure of her signature to the will, and that if the present signature thereto is in the handwriting of the testatrix, it was not legally re-executed and published as her will. It is apparent from an examination of the paper that the sig nature of the testatrix has been erased, first by drawing diagonal lines over the name, and then nearly erasing such lines and the name itself. The evidence is quite conclusive that the instrument now bears the genuine signature of the testatrix and that it is in the same condition as when taken from her safe. Her name appears to be carefully re-written over the original signature. It is written with ink of a different color from that used in the body of the will or by the witnesses at its execution, but the evidence shows that the testatrix might have used different ink from that used by the witnesses. I am unable to find as a fact from the evidence of the surviving witness and from the appearance of the instrument itself, that the erasure was made either before or at the time of its execution, and there is no evidence in the case that throws any light as to when it was done or why it was done. With the burden of proof resting upon the contestants, I cannot presume as matter of law that the erasure was made at some time subsequent to the execution of the will. When an interlineation or erasure in a will is fair upon its face and entirely unexplained, there is no presumption, in the absence of any suspicious circumstances, that it was fraudulently made after the execution of the instrument. Crossman v. Crossman, 95 N. Y., 145; Matter of Voorhees, 6 Dem., 162. I am asked by the contestants to presume as matter of law that the erasure was made animo revocandi with intent to revoke and destroy the will, and that the act was sufficient to accomplish the intent. 2 R. S., part 2, chap. 6, title 1, art. 3, p. 64, § 42, provides that, "no will in writing * * * nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing * * * or unless such will be burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself." In Timon v. Claffy, 45 Barb., 447, it was held that the testator may destroy his own will at any time or in any mode or manner he pleases, and it need not be attested by witnesses. Schouler on Wills, § 388. If the testatrix cut out her own name from the will with clear intent to revoke it, it is a sufficient destruction. Id., & 389. Leaving off the seal with like intent would have the same effect. Id. So would drawing lines over the testator's name, animo revocandi, even though the signature is still legible. Id., §§ 392, 393, 401, and notes; Jackson v. Holloway, 7 Johns., 394, or if signature is erased with a pencil. Woodfill v. Patton, 76 Ind., 575; 2 American Probate Rep., 200. But whatever the means employed for defacing or destroying the will, a free and rational intention to revoke must accompany the act, or the revocation will not be valid. Schouler on Wills, $384. The mere act of cancelling is nothing unless it be done animo revocandi. Jackson v. Holloway, supra. Had the will been found with the signature of the testatrix erased and not rewritten, the legal presumption would have been that it was cancelled and revoked by the testatrix animo revocandi. The Probate of the Will of Mary Ann Clark, 1 Tuck., 445; Woodfill v. Patton, 76 Ind., 575; In re White, 25 N. J. Eq., 501. The proponents having proved the due execution of the will, it is entitled to probate unless the contestants prove its revocation by some one of the modes pointed out by the statute. Williams on Ex'rs, 6 Am. Ed., 196; 2 Whart. Ev., § 894; Abb. Trial Ev., § 73, p. 123; 2 Whart. Law of Ev., § 894. If the will had been found in her safe carefully preserved among the valuable papers of the testatrix, with her signature erased, it would have been a fair and reasonable presumption that she erased the signature animo revocandi. And it would then be lacking in one of the statutory requirements of a valid will; the sig nature of the decedent at the end thereof; but when found with the signature carefully restored, no such presumption arises. In the absence of all proof how can I find that it was made with the intent to revoke, when the instrument was preserved by her with her signature carefully restored? An intention to revoke a will not fully consummated is no revocation. Doev. Perkes, 3 Barn. & Ald., 489. The cancellation of a will does not neces sarily involve its revocation. The cancelling itself is an equivocal act, and in order to operate as a revocation must be done animo revocandi. 2 Wharton's Law of Evidence, § 900; Dan v. Brown, 4 Cow., 483, 490. It may be that Mrs. Wood drew the lines through her name with the intention of revoking the will, but immediately and before the act was completed changed her mind, erased the marks and restored her signature. To sustain the theory of the learned counsel for the contestants I must find that the erasure was made by the testatrix herself, understandingly, freely and voluntarily, with no other purpose than to destroy her will, and that it was done at some time previous to the act of re-writing her name; and this finding is asked for in the absence of proof and with the burden resting upon the contestants to establish the fact of revocation. In Matter of Prescott, 4 Redf., 178, it was held that when the testator, after the execution of his will, made erasures and interlineations therein, without intending to revoke, and without reexecuting the same, the will will be admitted to probate as originally executed. Mere tearing or destruction, without intention to revoke, is no revocation. 1 Jarman on Wills, 302, Randolph and Talcott's Ed. "If a testator is arrested in his design of destroying the will by the remonstrance or interference of a third person, or by his own voluntary change of purpose, and thus leaves unfinished the work of destruction which he had commenced, the will is unrevoked; and the degree in which the attempt had been accomplished would not, it should seem, be very closely scrutinized, if the testator himself had put his own construction upon his somewhat equivocal act, by subsequently treating the will as undestroyed." Id., 289. In Bethell v. Moore, 2 Dev. & Batt., 316, Chief Justice Ruffin said: "It may be admitted that the slightest act of cancellation, with intent to revoke absolutely, although such intent continues only |