32 N.Y.S. 845 | N.Y. Sup. Ct. | 1895
The surrogate decided that there was such a subscription and signing by the testator and witnesses at the end of the will of Lewis R. Blair as is required by statute, and admitted it to probate. The object of the statute is to surround testamentary dispositions with such safeguards as will protect them from alteration, and to prevent fraud. The court of appeals said of it, in Sisters of Charity v. Kelly, 67 N. Y. 409, that the provision “is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions. While its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction.” Other cases in which the question has been in some form presented are In re Hewitt, 91 N. Y. 261; In re O’Neil, 91 N. Y. 516; In re Conway, 124 N. Y. 455, 26 N. E. 1028; In re Case, 4 Dem. Sur. 124. Neither in those cases nor in any others, to which our attention has been called, has the precise question now presented been considered, but they all manifest an intention on the part of the courts to insist that the requirements of the statute shall be strictly enforced. On the 8th day of December, 1887, Henry G. Leask, at the request ■of Blair, drafted for him a will containing some 19 provisions. He was assisted in that work mainly by a prior will executed by Blair. While he was engaged in the work of preparing the new will for •execution, Blair was in an adjoining room, visiting with the •draughtsman’s father, who was an old friend of his. As soon as the writing, including the attestation clause, was Completed, the ■draughtsman invited Blair in, and read the will to him; saying, as the reading was finished, “Is that your will?” to which Blair replied, “Yes; that is my will.” Then Blair said:
“Now, I want you to add something at the bottom of that. It has nothing to do with the will, but I want you to add this, so that my executors shall have money enough' to pay for funeral expenses, and other things that may come up; and it won’t interfere with the body of the will.”
In accordance with his request, the draughtsman added the following:
“I hereby direct my executors to sell at private sale that piece of real estate, with tenements and appurtenances thereto, known as Number -, Bast One Hundred and Tenth (110) street, in the city of New York, and occupied by Mr. Rosenthal, and the proceeds thereof to be devoted to liquidating any deficiency that may arise in interest or cash bequests made in this ■will”
Another person was then brought in to subscribe the will, as a witness; and, in the presence of the subscribing witnesses, Blair
Whether the court was right in deciding that the provision which we have quoted, and the signature of Blair subscribed thereto, should be ignored, must be considered. The first inquiry naturally relates to the character of this provision. Is it substantial? Had the testator a definite and well-understood purpose when he instructed the draughtsman to write it out? And was that purpose to prevent a failure of the will, as to interest and cash bequests, by providing for a sale of enough real estate to prevent it? If the clause be read and considered independently of the testimony of the draughtsman, an affirmative answer only is possible. And it is a fact not to be lost sight of that the latter clause was signed and sealed by the testator at the same time and in the same way as the provisions which preceded the attestation clause. It is urged that notwithstanding such fact, and the further one that it purports upon its face, to constitute an important part of the will, it may be disregarded, and the will held to have ended above the first signature, because of the testimony of the draughtsman that Blair, in effect, declared, when directing that the clause be written, that it had nothing to do with the will. It is clear that it was intended by Blair, by means of this provision, to make certain the payment of the various bequests given by his will. And it seems to be equally clear that the idea which Blair intended to convey to his draughtsman was that the added clause would not in any way affect the disposition of his property which he was undertaking to make by the provisions already incorporated into the instrument.
But, if it be assumed that the language employed by him in giving instructions to his draughtsman is capable of the construction which the learned surrogate has put upon it, then the question is whether a testator’s conversation with his draughtsman • can have the effect to contradict and overcome a writing made and signed by him a few minutes later; for the power of sale clause, supported by the signature and seal of the testator, effectually . asserts that it constitutes a part of testator’s scheme for work
“It has nothing to do with the will, but I want you to do this so that my executor shall have enough to pay for funeral expenses, and other things that may come up; and it won’t interfere with the body of the will.”
We think it must be held that the first signature of Blair was not at the end of the will, and it follows that the decree, admitting so much of the instrument to probate as precedes it, is in violation of the statute requiring the signing by the testator at the end of the will. The decree should be reversed, and probate denied, with costs to all parties, payable out of the estate. All concur.