Matter of Griswold.

There is no reason, therefore, in respect to all the formalities required, in order to make the instrument valid, why it should not be admitted to probate.

But it is contended that a subsequent instrument was made about the year 1851, revoking all former wills. It was decided in the court of the King's Bench, in England, as long ago as 1688, that a subsequent valid will is a revocation of a former. (Hitchins a. Bassett, 3 Mod. R., 203; Eggleston a. Spake, Ib., 258.) It was long a vexed question whether a subsequent will revoked a former one, unless the subsequent will contained a revoking clause. (See the excellent Treatise of Judge Willard on Executors, 119; 1 Bradf., 114; 4 Zb., 334.)

But our statutes, and the adjudications construing the same, have settled that question. The Revised Statutes point out the only modes by which a will may be revoked or altered:

First, by some other will in writing.

Second, by some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed.

Third, by burning, tearing, cancelling, obliterating, or destroying the will, with the intent of revoking the same by the testator himself, or by another person in his presence, by his direction or consent.

Fourth, by certain changes in the testator's situation in life, as by marriage.

Fifth, by partial revocations, occasioned by ademption of a legacy. (2 Rev. Stat., 4 ed., 246.)

It is claimed by the contestants that the facts bring the case within the first subdivision above stated.

One witness testifies that about the year 1850 he called at the store of the deceased; that after a little conversation, deceased inquired if the witness was in a hurry, and stepping a little from behind his counter, holding a paper in his hand, and looking out of the window, inquired of the witness who it was passing by; and being informed that it was Mr. Griffin, a neighbor, the latter was invited in by the deceased. The deceased then stepped behind the counter, still holding the paper, and addressing Griffin and the witness, remarked that his circumstances had somewhat changed recently, and laying the paper on the counter, said, "This is my last will and testament;" and further

Matter of Griswold.

said, "I hereby revoke all former wills," moving his finger along down to the bottom of the paper; the deceased further saying, "This is my hand and seal." The deceased then showed where he wanted the witness and Griffin should sign their names, pointing out the place on the paper, and saying, “Gentlemen, I want you to sign there." The witness and Griffin then signed their names. The witness testified that as the deceased ran his finger along the paper, he said the words, "I hereby revoke all former wills." He testified that he saw the seal to the instrument at the time.

The counsel for the proponent sought to invalidate the credibility of this witness, by showing statements out of court, inconsistent with his testimony. It is not necessary to detail these circumstances, because he is corroborated by Mrs. Simmons, who had been some nine or ten years in the family of the deceased as housekeeper and clerk in his store. She testified that she saw the instrument referred to by the other witness, Mr. Somers, while it was being drawn; that the deceased wrote upon the paper a little every day, for several days, and laid it aside; that in his absence she read all that he had written, and that her reason for so doing was to ascertain whether he had made a legacy to her, as he had promised to do; that she read it over in company with Alexander V. G. Comstock, a grandson of the deceased; that she saw the deceased sign and seal the will, and saw him call in Mr. Griffin to witness it the next morning after it was drawn, and saw Griffin and Somers sign their names as witnesses; that she remembered of seeing a clause in the will revoking all former wills; she stated some of the other provisions that the will contained; she corroborated the witness Somers, in respect to the circumstances that transpired at the time the will was witnessed.

Alex. V. G. Comstock testified that he saw the paper while it was being drawn. He corroborated the testimony of Mrs. Simmons.

Griffin, the other subscribing witness, was proved to be dead.

Under this testimony, it appears clear that the will of 1828, propounded for probate, had been revoked by the subsequent will above referred to.

I therefore order that probate of the instrument propounded

Atocha a. Garcia.

be denied, and that the same be held and declared to be invalid as a will of real or personal estate.

The application of some of the contestants to have the costs paid by Mr. Moore, personally, cannot be entertained. On finding the will, it became the duty of Mr. Moore to offer it for probate. I see nothing tending to show that he has transcended his duty in the matter. His costs, and the costs of the contestants, may be paid out of the estate. If the amount is not agreed upon among the heirs, the same may be taxed on the usual notice.

ATOCHA a. GARCIA.

New York Superior Court; Special Term, July, 1862.

REFERENCE, WHEN ORDERED.-COMPLAINT.-STATEMENT OF GROUND FOR ARREST.

In an action in which the trial of an issue of fact will require the examination of a long account, a compulsory order of reference is proper, notwithstanding the complaint may contain allegations of fraud, such as constitute a ground of arrest, and the defendant has been arrested thereon.*

* LEWIS α. THE IRVING FIRE INSURANCE COMPANY. In two actions, brought by George and Everett Lewis against the Irving and the Fulton Fire Insurance Companies respectively, it was Held (Supreme Court, Second District, Special Term and Circuit, October, 1862), that the issue of damages in insurance causes was referable where it required the examination of a long account.

Motion for reference on the part of defendants.

These actions were brought to recover under policies of insurance for loss by fire of a stock of goods, consisting of stoves and tin-ware, embracing many items. The answers of the defendants denied that the plaintiffs lost by the fire the goods claimed to have been lost, and charged fraud upon the plaintiffs in making claim for more goods than they lost, whereby, by a condition of the policies, they are precluded from any recovery whatever.

The causes were noticed for trial, and placed on the calendar for the Circuit of October, 1862.

The defendants gave notice of motions for the first day of circuit that the causes be referred, on the ground that the trial would require the examination of a long account.

Atocha a. Garcia.

Especially is this so where the case is such that the allegations of fraud are immaterial, and unnecessary in the complaint.

Section 288 of the Code of Procedure, as amended in 1862,-which provides that no execution shall issue against the person of a judgment-debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by 179,-in its true construction, requires that in all those actions, where the nature of the cause of action is such that the defendant may be arrested, the ground of arrest must be stated in the complaint; otherwise an execution cannot go against the person, unless an order of arrest has been served. But when the action is one in which the defendant cannot be arrested without some intrinsic fact, forming no part of the cause of action, but merely incidental to it, the fact must be stated in an affidavit, and an order of arrest must be obtained and served, and the averment of such fact in the complaint will not alone authorize an execution against the person.

In the latter class of cases, allegations of the facts constituting the ground of arrest are not proper in the pleading.

Motion for a reference of the action.

This action was brought by Alexander Atocha against Clementi P. Garcia, to recover the value of board and lodging. The complaint contained allegations of fraud in the contracting of the debt in question, intended to show a ground for arresting the defendant, as a provisional remedy. The plaintiff caused the defendant to be so arrested, and now, the cause being at issue, moved for a reference, on the ground that it would require the examination of a long account.

MONELL, J.-I cannot entertain a doubt that the trial of this action will require the examination of a long account, on the part of the plaintiff. The issues require the plaintiff to prove each item. The defendant, by his answer, puts him to this proof, and the action will fail, as to any part not sufficiently established by evidence. The case is brought, therefore, directly within section 271 of the Code. But it is objected by the defendant, that he has a right to a trial by jury of the allega

After argument by Edward Fitch and John Owen for the motion, and by E. J. Beach, opposed

The court (SCRUGHAM, J.) granted the motion to refer the issue of damages, on defendants paying costs of the term.

The plaintiffs appealed to the general term, but the appeal was dismissed, on the ground, that by accepting the costs plaintiffs had waived their right to appeal

Atocha a. Garcia.

tion of fraud contained in the complaint, and upon which an order of arrest has been issued, and executed by the arrest of the defendant; and that, therefore, the case is no longer referable.

I think, however, the defendant is mistaken in supposing such an issue can be tried at all. The action is to recover the value of board and lodging, &c., furnished the defendant, and for no other purpose. The allegations of fraud in the complaint are not only unnecessary, in order to procure the provisional remedy of arrest, but I think them to be improper, and should be stricken out as irrelevant. Doubtless, the plaintiff's attorney, in reading the amendment to section 288 of the Code,which provides that no execution shall issue against the person, unless an order of arrest has been served, or "unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179,"-has supposed it necessary to allege the fraud, to secure the right to issue an execution against the person, if the plaintiff should not or could not procure an order of arrest. This, however, is not the correct construction of the amendment.

Subdivisions 1 and 2 of section 179, authorize an arrest when the action is for the recoveries therein enumerated. In such actions, the grounds of arrest must necessarily appear. They are a part, if not all, of the cause of action. Whereas, in subdivision 3, the grounds of arrest must as necessarily appear after the action is commenced. Subdivision 4,-which authorizes an arrest where the debt has been fraudulently contracted, -gives the provisional remedy in an action to recover the debt; and subdivision 5, when the defendant has removed, &c., his property, with intent to defraud his creditors.

It is clear, that in all that class of cases where the substantive cause of action is such that the defendant may be arrested, it must be stated in the complaint, as in actions for injuries to the person or character, or for wrongfully taking, detaining, or converting property, and the like. In these, the complaint, in alleging the cause of action, necessarily alleges the grounds which authorize an arrest; but where the substantive cause of action does not, of itself, warrant an arrest, and the arrest is an incident merely, growing out of other facts, arising at the time or subsequently, they become no part of the cause of action,

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