60 N.Y.S. 141 | N.Y. App. Div. | 1899
Lead Opinion
The due execution and publication of the will, save in one respect, was proved beyond cpiestion. The will is written on a blank or printed form, consisting .of a single sheet of paper, folded in the middle so as to constitute four pages. At the top of the first page is found in print the caption -or introduction to a will, as follows:
*395 “ In the Name of God, Amen.
“ I, ISABELLA ANDREWS, of the city of Brooklyn, county of Kings and State of New York, being of sound' and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament as follows.” On the next page, or rather on the reverse side of the page already referred to — for whether it is or is not the next page is the very question involved in this controversy — there is printed a form of appointment of executors, with the names blank. Below this is the testimonium clause, also in print, with the date blank. After an intervening space for the signature of the testator there occurs a printed attestation clause for signature by the witnesses. In so far as there are blanks in the printed form, these are properly and appropriately filled in in writing. After the printed.introduction to the will already referred to, there follow on the first page, in writing, various dispository provisions which occupy substantially the whole of the page, but a narrow margin being left at the end. On what would ordinarily be termed the third page of the instrument, or the page to the right of that on which are' found the signature of the testator and those of the subscribing witnesses, the dispository provisions are continued, wholly in writing, to the end of that page. Above these provisions, also in writing, are found. the words, “ 2nd page.” At the top of the page, on which occurs the subscription by the testator and witnesses, are found in writing the words, “ 3rd page.” In other words, this will is written in the form frequently, used at the present time in the case of ordinary correspondence where a single sheet of note or letter paper, consisting of two leaves or four pages, is employed; that is to say, the writing is continued from the foot of the first page to the third page, and from the foot of the third page to the second page. The question is whether a will so written, and subscribed on the second page, is a compliance with the provisions of our statute which requires a will to be signed at its end. The learned surrogate held that it was not, and rejected the instrument, solely because the will is written in the- order of paging referred to. Entirely against our" first impressions, and solely under the stress of authority, we are, of opinion that the decision of the learned surrogate is correct.
f we were unaided by the light of judicial decisions, we should
It is argued that we are in effect holding that, as a matter of law, the reverse side of the leaf first written upon constitutes the second or next page, while it is a matter of common qn-actice in - writing-letters to proceed from' the foot of the first page or front of the first leaf to the same side of a new leaf, and from that to the reverse side of the leaf first written upon, and that we are prescribing the order in which the writing of a will shall proceed where the statute has made no such requirement. We appreciate the force of this criticism, nor do we wholly deny that it is apposite, though the rule we declare does not go to the extent imagined. We do not hold that
It is said that if the second leaf be severed from the first, and Attached to the foot of the first page, then the will will appear well executed under any of the authorities. We concede this claim; but the answer to it is that in the instrument' as offered the connection between the two leaves is. at the side and' not at the foot. It is further said that, granting the sufficiency of our answer to the appellant’s argument in this respect, it is unreasonable to make the validity of a will depend on the point of connection between the several pages of the instrument. If this is so it is but a criticism on the rule that the signature must be found at “ the physical end of the will; ” but that rule is the law of this State. Many instances have been suggested to us on the argument by counsel where it would seem impracticable, if not impossible, to apply the rule. It is said that no law requires a will to be written on a single sheet of paper ; that it may be written on many detached or separate pieces; that no statute provides how such pieces shall be attached or how separate sheets shall be authenticated. We are asked if, in such a case, after the execution of a will the sheets or pieces of paper should be folded together in the wrong order, and the sheet last in fact and bearing the signatures of the testator and witnesses is by mistake found out of place, whether the will is to be rejected. It is not necessary for us to be able to answer this inquiry. Many cases have occurred to us in which it would seem difficult to apply the “ physical end of the
Finally, the appellants claim that the so designated “2nd page” may be upheld under the rule “that any written testamentary document in existence, at the execution of a will may by reference be incorporated into and become a part of a will provided the reference in the will is distinct, and clearly identifies, or renders capable of identification, by the aid of extrinsic proof, the document of* which reference is made.” (Dissenting opinion of Brown, J., in Matter of Conway, supra.) The rule asserted by Judge. Brown is unquestionably the law in England, and is the law in most if not all the States, other than this, where the common law prevails. It is so broad in its scope that a legally executed codicil referring to a previous will, which has been defectively executed or attested, will by incorporation, render the earlier will a valid testamentary disposition. (Croker v. Hertford, 4 Moore P. C. Cas. 339; Alien v. Maddock, 11 id. 427.) The doctrine that the publication of a codicil is a publication of the will to which it is a codicil, is but a corollary to the rule that testamentary dispositions in existing documents may be incorporated into the will. There is authority, too, in this State- for the rule. Caulfield v. Sullivan (85 N. Y. 153) would seem to have decided that proof of a codicil referring to a will was sufficient proof of the will itself. This in principle is exactly the doctrine of incorporation of extraneous documents; for if the publication of the original will was not proved, it was for the purposes of that case the same as if it had not been executed as a will at all. But. the recent cases in this State to which we have referred greatly limited if not entirely abrogated the rule for which Judge Brown contended in the Conway case. In fact, the rule seems entirely inconsistent with the other rule, that subscription must be made at the physical end of the will. If-the references on the face of the wills were not sufficient in the Conway and Whitney cases to incorporate into those instruments the testamentary dispositions;
With every disposition to uphold this will, we do not see how it can be done by this court. If limitations or qualifications are to be máde on the cases on which this opinion is based, those limitations jnust proceed from the Court of Appeals.
If the decision now made, by us should be upheld by that court, it will follow that at least six wills (including one in the fourth department, 42 App. Div. 593), undoubtedly containing the true testamentary dispositions of testators and executed by those testators with the intent to conform with the statutes of this State, will have been held void because of the interpretation placed on the statutory requirements for safeguards against fraud. The rule i which our decision enforces in this case operates only to prevent fraudulent additions to testamentary instruments, and not as a security against wills forged in their entirety. We think the decisions of the courts of this State will be examined in vain in the attempt to find six cases of alleged fraudulent additions to wills, or even half that number; and it must be conceded that as to this supposed danger the remedy has proved in practice far worse than the disease. In England a statute similar to our own, and construed as strictly by the courts of that country as our .statute has been construed by our courts, was passed in 1837 (1 Vic. ch. 26.) The evils resulting from it proved so great that in 1853 (15 & 16 Vic. ch. 24) it was modified. (1 Jarm. Wills [5th Am. ed.], 106.)
The judgment appealed from should be affirmed, with costs to all parties to be paid out of the estate.
If the question presented in this case were an original one, I should have no hesitancy in giving ready concurrence to the reasoning of, Mr. Justice Woodward and to the conclusion to which such reasoning logically leads. I should regard the decisions in Sisters of Charity v. Kelly (67 N. Y. 409) and Matter of O’Neil (91 id. 516) as furnishing sound authority in support of such a result. But the subsequent decisions found in Matter of Conway (124 N. Y. 455) and Matter of Whitney (153 id. 259), as they are interpreted by Mr. Justice Cullen in his- opinion, .from which interpretation I see no logical escape, precludes such result, and in obedience to such authority, as the question involved was fully considered and deliberately decided, I am required to yield the convictions which I hold. If it is a difference of opinion, we should bow in deference to superior authority; if we are mistaken in our interpretation, the Court of Appeals can set us right; if the rule has been extended beyond the point where the will of a testator is to be sacrificed in order that a technicality, not, as it seems to me, necessary for properly safeguarding the testament, may be observed, the court above will doubtless appreciate and correct it. At the present moment the law as it stands, as I understand it, requires a concurrence in the opinion of Mr. Justice Cullen.
Bartlett, J., concurred.
Dissenting Opinion
I am constrained to dissent from the opinion of Mr. Justice Cullen in this case, in the hope .that possibly the attention of the Court of Appeals may thereby be attracted to a renewed consideration of the principles announced by it in the cases cited by him.
While I recognize the propriety — indeed, the judicial necessity , — involved in the principle of sta/re decisis, cases sometimes arise where a judge may entertain such positive views as to justify him in declining to.follow a decision of even a court of last resort, where the court announcing it has overruled its own previous decision, as
My view of the duty of a judge is well expressed by eminent authority. Said Lord Justice Brett, dissenting in a similar case (Goods of Gunstan, 7 Prob. Div. 102): “ That is a point of law, and oil this point .we-must give our judgment. It is a point which must be decided upon the statute itself,vand even if twenty cases' decided that it would be a sufficient acknowledgment, if we were clearly of opinion that, according to the true construction of the statute, it would not do, we should not be bound by those cases. Where there have been several decisions or a series of decisions-upon any statute, I should dread to overrule those decisions or that series of decisions; but still we should be compelled so to do if we thought that those decisions were not in accordance with the statute.. But in this case we have no long line of decisions one way; there seem to be conflicting decisions, and we must accordingly exercise our own. judgment on the question independently almost, if not quite, of every former decision.”
It is to be noticed that one of the authorities which Judge Ruger cited and relied upon in The Matter of the Will of O'Neil (91 N. Y. 522) was the case of Hays v. Harden (6 Penn. St. 409). He excerpted the following language-to show the opinion of the Supreme Court of Pennsylvania on the subject: “ Signing at the end of the will was required to prevent evasion of , its provisions.” In Baker's Appeal (107 Penn. St. 381) the. court, referring to Hays v. Harden (supra), said: “ In that case there was no reference whatever in the paper purporting to' be the will of John Hays to the clause which followed; .there was no word or mark in the body of the will indicating any intention of the testator at the time of execution that •the appended, unattested clause should be drawn to and inserted at any designated place.”' The court declared that, although the signature of the testator was on the third page, and was followed by writing on the fourth page, it was signed at the end of the will, on the ground that the fourth page was, by referring words, drawn into its place before the end of the will and the signature of the testator. The court held that an extraneous, unsigned writing may, by force of a clearly expressed intention in the body of the will, constitute part of the will itself. The reference in the will must be complete
In the case at bar there is no conflict of fact upon the point that the will was executed by the testator in the exact condition in whicli it was offered for probate, with pages marked 2d page and 3d page ;respectively. This whole paper then, was his will: .Courts are not astute to defeat testamentary intentions ; indeed, they are astute to discover methods of -supporting them. To hold that the will was .not actually signed at its end, when the page on which the signature appears is marked “ 3rd page,” and is preceded by another page "marked 2nd' page,” is to' defeat the will .of the testator. The high.est duty of courts is to -ascertain what is just, and many ¡cases may be found where, having ascertained this, the courts have bent their energies to the doing -of exact justice, even where a technical reading of a statute might prevent it.
. I cannot assent to a course which will defeat an instrument which is clearly the will of the testator, until there has been a- revision of ■ the point by our court of last resort.
I think the decree of the surrogate should be reversed. '
Dissenting Opinion
; I am unable to concur in the conclusion reached by Mr. Justice Cullen that the judgment of the court beloyr should be affirmed. Mirst, because I do think the objection raised comes within the reason of the law; second, because I do not find in the' authorities cited any necessity for going to the-length of defeating the intern tion of the testator.
The objection raised is that the will is not executed in conformity with the provisions of the Revised Statutes (2 R. S. 63, § 40), in that it is not signed by the testatrix and the witnesses at the “ end of the will; ” and it will be conceded that if it is not so signed, it, is not within the provisions of the law, and is, therefore, of no effect.
At common law, if a person wrote his name in the body of -a will or -contract with intent to execute it in that ' manner, the' -signature so written was ,as valid as "though subscribed at the end of the
The testatrix signed this instrument directly below and immediately at the end of the will as thus prepared, and her signature is followed by that of the witnesses. The only question presented, therefore, is whether it is necessary, as a matter of law, that the pages of a will should be consecutive. If the draftsman had, after completing the first page, turned to the first side of the second sheet and filled that, and had then turned over the page and completed it on the fourth page, there would have been no doubt that the signatures at the end of the will complied with the provisions of the statute. Yet this would have left the actual physical, consecutive second page blank, and open to all of the opportunities for fraud which the statute aimed to prevent. If the pages had been numbered there would have been no more propriety in calling the last
In Sisters of Charity v. Kelly (67 N. Y. 409) the only signature ¡Droved to be that of the testator was found in the attestation clause, following the signatures, of the witnesses, and contained in the body of the paragraph. There was no signature at the end of the will, merely a declaration, “ Subscribed by John Kelly, the testator named in the foregoing will,” etc., the name “John Kelly” being written by the testator Kelly. In commenting on this failure to sign at the end of the will, the court say: “ The statutory provision requiring the subscription of the name to be at the end is a wholesome one and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions.” The court then say, and it is important to bear this in mind, that “ while its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction.” . Within the rule in this case there is no reason for saying that a will "consisting of three written pages, the last two pages being distinctly numbered as the “ 2nd page ” and3rd page,” is not signed at the end when it is subscribed at the finish of the written matter upon the “ 3rd page.” To illustrate, suppose that the will had been written on three, separate sheets of paper, the signatures appearing upon the numbered “ 3rd page;” that these had been gathered up and fastened together at the top with a seal, and when the instrument was offered for probate it should appear that the third page had been placed immediately after the first page, and the second page was last. Woiild any one attempt to say that the. will was not signed at the end? Yet, assuming the pages to be numbered “ 2nd page ” and “ 3d page,” as in the will now under consideration, would there not be just as many opportunities for fraud by inserting'provisions under fractional page numbers? . .
In Matter of Conway (124 N. Y. 455) the paper offered as a will consisted of a single sheet about the size of a legal cap page. The formal opening and closing clauses of the will were upon the first page. .In drawing the will the scrivener filled up the blank space
In Matter of Whitney (153 N. Y. 259), as in The Matter of Conway (supra), the will is drawn upon a printed blank, covering only
The Legislature has not attempted to prescribe rules which should make fraud impossible; it has simply sought to lay down broad general rules which shall reduce the probabilities of .fraud to a minimum, and among these it is provided that the testator’s signature must be at the end of a will, and we are not called upon to give construction to this rule beyond the point which it is reasonable to suppose the Legislature intended. It is .true, of coutse,that by means of fractional paging the will before us might be added to, but it is equally true that if the will had been finished ón the: fourth page of the sheet the second page might have been called one and one-half, opening an equal opportunity for fraud. It is likewise true that the spaces between paragraphs in a will might be so wide as to admit of new clauses or new paragraphs, and there are almost endless ways by which forgery may be committed, but the Legislature', aside from its criminal statutes, has not sought to deal with. these, and there is no reason why this court should extend the'rule beyond the policy of the law and defeat the purposes of tbe testatrix in the case at bar simply. because she has not followed the consecutive order of paging. The opportunities for fraud are no greater in this
I am of opinion that the judgment should be reversed, and that the will should be admitted to probate.
Decree of Surrogate’s Court affirmed, with costs.