138 N.Y.S. 784 | N.Y. App. Div. | 1912
Lead Opinion
Mary Irving, employed as a chambermaid at the Woman’s Hospital, in New York city, died after a brief illness on February 10, 1912, leaving a last will and testament whereof her friend Mary Galvin was executrix, and by which after the payment of her debts and funeral expenses the residue of her estate was left to said Mary Galvin “in appreciation of all her
The testimony of the subscribing witnesses is ample to warrant the admission of the will to probate and no possible question could be raised as to its validity were it not for the fact that decedent, who could read and write, did not sign her' name thereto, but simply made her mark. This does not of itself invalidate the will. A testator who desires so to do may make his mark, adopting that as his signature, and it thereupon becomes his signature within the meaning of the statute. (Jackson v. Jackson, 39 N. Y. 153; Decedent Estate Law [Con-sol. Laws, chap. 13; Laws of 1909, chap. 18], § 21.) But where one who can write has not signed his name to his will, but has instead thereof made his mark, and those taking, substantial interests under the will are instrumental in obtaining it, while other interested persons act as witnesses to the signature, clear and satisfactory evidence is required to meet the burden of proof, and if the circumstances are not satisfactorily explained they may justify a conclusive presumption that the mark is not the subscription of the testator. (1 Underhill Wills, 255.) The reason of this requirement is obvious, having in mind the impossibility of determining, by comparison with other standards, whether a mark is genuine or not, as may be done with signatures.
In this case, however, the burden has been fully sustained ; by the proponent. The notary who drew the will is not related to the parties to the controversy. The proponent had nothing to do with its execution. Her daughter, with whom decedent had been on intimate terms of friendship and to whose • mother’s home she resorted and where she stayed when out of employment, had been questioned by decedent about the way to go about making her will, and had introduced her to the notary, Dargeon, who was also an undertaker. His place of business was between the hospital and the Galvin home, the
It is significant that the witness Dargeon swears that when decedent made her mark it was done so faintly that he requested her to make it heavier and .she retraced it. When the contestant produced the record of the Woman’s Hospital it was found that decedent had written her name in pencil, but it evidently was done weakly or faintly for the historian of the hospital wrote it over in ink. This was some two months before she died. It is not unnatural for persons in the - position of decedent to experience some nervousness at the thought of executing a formal document, which assumes still greater importance when presented to one who has not been accustomed to business affairs. While decedent could read and write, no letters of hers to any one' were produced. She was apparently in good health but in view of the early occurrence of the fatal attack, she may well have suspected her dangerous condition. In any event, the testimony amply warrants the conclusion that for reasons which she deemed sufficient she chose to make her mark upon her will instead of affixing her signature, and that the will was executed in full compliance with every requirement of law.
There is no proof of any undue influence exerted upon testator, nor was her will an unnatural one for her to make. Her only next of kin was her sister, who for twenty years had been hopelessly insane and who had been continuously confined in a public institution. Decedent visited her two or three times a year but had never contributed anything to her support, evi
The decree admitting the will to prohate should be affirmed; with costs to the proponent. - •
Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Miller, JJ., dissented.
Dissenting Opinion
On an appeal from a surrogate’s decree admitting a will to probate the Appellate Division should consider the whole evidence de novo. . (Matter of Brunor, 21 App. Div. 259.) In such consideration it has the same power to decide questions of fact' which the surrogate had (Code Civ. Proc. § 2586), and if in doubt whether the will were duly executed, to set aside the pro-: bate and direct a trial of the issues before a jury. (Code Civ. Proc. § 2588; Matter of Manton, 32 App. Div. 626; Howland v. Taylor, 53 N. Y. 627.)
After a careful consideration of all the evidence taken by the surrogate I think there exists a doubt sufficient to justify the court in setting aside the probate and sending the matter tot' a jury to determine whether the will in question were ever signed by the testatrix. At the time of her death she- was over twenty-one years of age. The will is alleged to have been made on the 3d of February, 1912, and she died suddenly on the tenth of that month. Prior to her. death she had enjoyed good health, was a person of strong mind, of at least ordinary intelligence, could read and write, and properly manage her own affairs. Her only immediate relatives were a sister in- an insane asylum and a niece, neither of whom
It may be in the city of New York that wills are frequently drawn by undertakers who happen to be notaries public, but when a person of ordinary intelligence, who can read and write, signs such will by mark, the court should require some reasonable explanation why that course was adopted. A forged signature, in most cases,-, can be detected, but a signature by making a mark, if a forgery, is almost impossible of- detection.. It is for this reason, in the latter case, where the witnesses to such mark are ■ interested by taking a substantial interest or are the- intimate relatives or intimate friends of those who do, that very clear .and satisfactory evidence is required to establish the validity of • the mark. (1 Underhill Wills, 255.)
Such evidence, I think, was not here given; on the contrary, the same is far from convincing-, and, as it seems to me, bears evidence of being manufactured. The testatrix, at and immediately prior to her death, was employed as a chambermaid at the Woman’s Hospital in the city of ’New York. Just how long she had been there employed does not appear, but it is fairly to be inferred for some considerable time, on account of - the intimacy she had with other employees. Anna Gallagher, another employee of the hospital, who for eight months immediately prior to the testatrix’s death had roomed with her,
The genuineness of the mark is not only doubtful, but the testimony of the subscribing witnesses, as well, as that of the one who drew the will, tend in no small degree to increase the doubt. The witness Galvin testified that the testatrix, some three weeks prior to the making of the will, asked her about it; that she stated she did not know but .would ask her personal friend, Mr. Brown; that Brown told her to take the testatrix to Dargeon;. that she introduced the testatrix to Dargeon and they had a talk; that the testatrix then asked the witness if she could not get Mr. Brown as a witness; that on the evening the will was executed the testatrix was at Galvin’s house; that .nothing was there said about the will, but in walking home with her the testatrix asked “ if we would attend to that little business that evening, * .* * and I told her * * * I would be perfectly willing to go in the evening and we went; ” that they thereupon went to Dargeon’s office and met Dargeon and Brown; that before the testatrix made her mark Dargeon read the will and then handed it to her; that she took it, made her mark and then asked her and Brown to sign as witnesses, which they-did. Brown testified that he was at Dargeon’s office when the witness Galvin and the testatrix arrived, and that the testatrix and Dargeon went into a rear office for a short time and then Dargeon went upstairs to another office where the will w"as drawn; that after he had drawn it, Dargeon came downstairs and at the testatrix’s request read it to her in the presence of both witnesses. Dargeon testified that he first met the testatrix two or three weeks before the will was drawn; that she was brought to . his office and introduced by the witness Galvin; that he took her to the rear office, and she then told him she had some money in the bank and would like to make some disposition of it in case of her death; that he told her she could
So that we have a person of full age, accustomed to reading and writing, of ordinary intelligence, in the habit of transacting her own business, making deposits in the bank and writing her own signature, in good health, going deliberately to an undertaker to have her will prepared and executed, and stating in advance of the execution that she will sign the same by making her mark, and the only excuse she gives for so doing is that she is in a state of excitement and feels very nervous. This is not the kind of proof which the law requires to explain why a person who can write signs a will by mark, and especially so when the relation of the subscribing witnesses and the person who drew the will to the sole beneficiary — who is in no way related by blood — is considered. Not only this, but the person who drew the will was a comparative stranger whom she had never met but once before and in whose custody she left the will after it was executed, and where it is claimed it remained until after she died. I cannot help but feel, under such circumstances, that property ought not to be taken from those who would otherwise inherit it, at least until a jury has passed upon the question.
For these reasons I am unable to concur in the opinion of Mr. Justice Dowling and vote to reverse the decree of the surrogate to the end that the matter may be submitted to a jury.
Miller, J., concurred.
Decree affirmed, with costs.