In re Proving the Last Will & Testament of Granacher

77 N.Y.S. 748 | N.Y. App. Div. | 1902

McLennan, J.:

A lost or destroyed will may not be established or admitted to probate except upon complying with the requirements of sections 1865 and 2621 of the Code of Civil Procedure. Section 1865 provides : “ But the plaintiff is not entitled to a judgment establishing a lost or destroyed will as prescribed in this article, unless the will was in existence at the time of the testator’s death or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.”

Section 2621 is as follows: “ A lost or destroyed will can be admitted to probate in a Surrogate’s Court, but only in a case where a judgment establishing the will could be rendered by the Supreme Court as prescribed in section 1865 of this act.”

It is conceded that Barbara Granacher died on the 15th day of April, 1883; that at the time of her death she was sixty-two years of age and a resident of the city of Buffalo, K. T.

It is uncontradicted that on the 17th day of January, 1882, the date of the alleged lost will, the deceased was of sound mind and memory; that she executed a will at that time fully complying with all the requirements of the statute in that regard, and that the execution was her free, unconstrained and voluntary act.

The evidence establishes that as early as April, 1901, how much earlier does not appear, what purported to be a will of the decedent was on deposit in the surrogate’s office for safe keeping. It was inclosed in an envelope, upon the outside of which was indorsed the name “ Barbara Granacher.” The paper consisted, of four .pages or one entire sheet of foolscap paper. The name of Barbara Gram ocher was signed to it; then followed an attestation clause, and after such clause were the names George Kein and Louis Braunlein as witnesses to the will, and the proof is that the name Louis Brau-nlein was the genuine signature of a well-known resident of the city of Buffalo by that name. Some time in April; 1901, a clerk in the surrogate’s office permitted this paper (the alleged will) and the envelope in which it was contained to be taken to an attorney’s office for the purpose of making a copy of the same. It satisfactorily appears that two exact copies of such paper were made, one of which, on the 12th day of April,. 1901, was filed in the surrogate’s office, and the other was attached to and made a part of the petition herein. In some manner the alleged will, the paper borrowed from the surrogate’s office, was lost, and although diligent search has been made it cannot be found. There is no suggestion that it was willfully suppressed or destroyed, or that any one was guilty of willful misconduct in respect to it. Its loss, so far as the evidence discloses, was purely accidental, and, as we have seen, the copies made were in all respects true copies of the paper which purported to be the will of the decedent, and which was on deposit in the surrogate’s office for safe keeping, and that paper, as we have seen, had upon it the name of the decedent, the names of the subscribing witnesses, George Kein and Louis Braunlien, and the name of Louis Braunlien was the genuine signature of a gentleman by that name.

It appears by the evidence of Mr. Braunlein that he was well acquainted with the decedent in her lifetime. He testified that on or about the 17th day of January, 1882, he had charge of the preparation of the will of the decedent; that he did not remember whether he personally wrote the will, but stated that he was familiar with- the making of it, was acquainted with its contents,-and that he undertook to see to its execution. He stated that he read the will and explained it to the decedent in German, she Being a German ; that she signed the will in his presence and iñ the presence of George Kein, the other witness to the will, and that Mr. Gran-ocher and a Mr. ITauck were also present. He stated that he asked the decedent if that was her last will and testament, and that she said it was ; if that was her signature, and she said it was; if she-desired Mr. Kein and himself to become witnesses to that will, and she said she did, aúd that then Mr. Kein signed it and the witness signed it in the presence of each other and in the presence of the deceased; that after the will was so signed and executed he, the witness, delivered it to the deceased. The witness also stated that to the best of his recollection the coj>y of the paper which was taken from the surrogate’s office was in every particular a copy of the will executed by the deceased and signed by him and Mr. Kein as subscribing witnesses on the 17th day of January, 1882. It is not suggested that the witness Louis Braunlein ever signed as witness any other will of the decedent.

The evidence satisfactorily establishes that “ the will was in existence at the time of * * * the death of the testatrix.” A will was- executed by the deceased before her death, to wit, January 17, 1882; was signed by Mr. Kein and then by Mr. Braunlein as witnesses. Just such a will was found long after her death in the surrogate’s office, where such instruments are frequently deposited for safe keeping. Upon it was the name of the testatrix and the names of the two witnesses, all in the same order, and the name of Mr. Braunlein was his genuine signature, all of which identified the will found in 1901 as the will which was executed by the testatrix in 1882. The provisions of the will are clearly and distinctly proved by at least One credible witness, Mr. Braunlein. It is true that instead of reciting its provisions that witness stated they were the same as those contained in a paper which was shown him, to wit, the copy. But this method of proving the contents of the original will was in no manner objected to, and the appellant ought not now to be heard to complain because it was done in that way. A correct copy or draft of the will was introduced in evidence, and this was equivalent to one witness.

We think the evidence produced on behalf of the petitioner was of such a character as to fully meet the requirements of the statute, and as to authorize the surrogate to establish the copy as the last will and testament of Barbara Granacher, deceased, and to probate the same.

It follows that the decree of the Surrogate’s Court should be affirmed, with costs of this appeal to be paid by the appellant personally.

Adams, P. J., Spring, Williams-and Hiscook, JJ.,. concurred.

Decree of Surrogate’s Court affirmed, with costs payable by the appellant Forster personally.