In re Collins

5 Redf. 20 | N.Y. Sur. Ct. | 1879

The Surrogate.

There seems to be no substantial defect in the proof of execution by the subscribing witness Smith, which is full and complete, on his direct examiiiation as corrected by his cross-examination, even if it be assumed that his expression “to the best of my belief ” qualified or impaired the force of his testimony. But when his attention was called to this expression on cross-examination, he testified distinctly that it applied to another portion of the decedent’s declaration, and not to the statement that'it was his will; and he testifies that these remarks were made when he was signing his name.

. The testimony of the witness White seems to be liable to more criticism, and if the other subscribing witness had not been more definite, it would certainly jeopardize the probate of this will; but when he testifies that the only information he received from decedent, that the instrument executed by him and subscribed by the witnesses was his will, was when the witness entered the room and decedent approached him, holding the will in his hand, and the instrument is thus satisfactorily identified, I should regard it as substantially published, so far as this subscribing witness was concerned; and he adds afterwards, that there was a conversation about a will, the substance of which was that decedent said, after he reached the desk for the purpose of signing, that it was his will.

In Jackson v. Jackson (39 N. Y., 153), Mr. Justice Woodruff, at page 159, in commenting upon that subject, says: “The order of the several things constituting one complete execution by the testator, is nob material if they are, in fact, done, as nearly as may be, at the same time. Thus the statute requires that the testator at the time of making such subscription shall declare the instrument to be his last will and testament. But this does not make it necessary that the declaration shall be uttered while in the very act of writing. It may be immediately before or immediately after ; it is enough if it be on the same occasion and form part of the one transaction.”

I entertain no doubt that the proof is sufficient to establish the due execution of the instrument as a last will and testament. The next question to be considered is the manner in which the instrument appears to have been written, leaving a blank on the second page, and also a sheet attached, on which the attestation clause is written. The proof tends to show that the instrument in question is in the same condition that it was when executed; indeed, there is strong internal evidence of that fact, for the sentence commencing at the bottom of the'first page is concluded at the top of the third page of the sheet, and shows a clear continuity in the same handwriting ; besides, the first page is so marked, and the second written page is also marked as the second page, and is shown to have been written at the time the instrument was drawn by the scrivener who copied from another instrument at the request of the decedent. Under these circumstances, though it is a very careless mode of writing so important an instrument as a will, and affords an opportunity for the fraudulent insertion

of provisions not drawn to the attention of decedent in an ordinary case, still the continuity of the sentence, and the other proof of the identical condition of the will, as offered for probate and when executed, in my opinion renders it proper that the will should be admitted to probate, notwithstanding the authorities to which my attention has been called, particularly that of Heady’s will (15 Abb. N. S., 211), decided by the learned Surrogate of Westchester county, in 1873, in which he is pleased to express the danger of leaving a blank page intervening in the midst of the disposing parts of a will, and cites the cases of Willis v. Low (5 Notes of Cases, 428); Smee v. Bryer (6 Id., 20). Bat in that case another very serious obstacle to the probate of the will existed in the fact that the attestation clause was written on the fourth page of legal cap, but inverted, and there signed by the witnesses, which he adjudged to be a failure to subscribe the will at the end thereof by the subscribing witnesses, and for which he rejects the same, not passing upon the effect of the blank; both of the cases referred to by the said Surrogate being authorities upon, that particular question, and not as to the effect of leaving a blank in the body of the will. The case of Gore (3 Curteis, 759), was where a will concluded at the bottom of the first page, the second being left blank, and on the third was the attestation clause, at, the foot of which were the signatures of the testator and the subscribing witnesses, and it was held that it was signed at the end.

I am of the opinion that under the proof in this case and the continuity of the sentence of the will, from the bottom of the first to the top of the third page, there is a sufficient protection against imposition and fraud to warrant the admission of the instrument in question- to probate ; and that the instrument propounded was duly executed according to the requirement of the statute, by the testator, when of sound and disposing mind, free from undue influence.

Let a decree be submitted for signature.