10 Mills Surr. 188 | N.Y. Sur. Ct. | 1913
There is but a single question in this cause: The paper propounded, by inspection is readily seen to consist of two sheets of legal cap, woven together in the web and never cut since they came from the paper maker. In other words, the two sheets are only such by manner of folding. Originally they were fabricated in one long sheet. As folded they now make two sheets, or four pages, susceptible of being written on. These two sheets, or four pages, are now backed by a separate cover fastened on by removable metal staples. The cover is indorsed, “ Last Will and Testament of Michael Peiser, November 18th, 1908.” The cursive script propounded covers the front page of the first or uppermost sheet, continues consecutively on the reverse side of the second or lowermost sheet, and then returns to the reverse side of the first sheet, ending thereon with the subscription of the testator, followed by a full attestation clause, subsigned by the attesting witnesses. In other words, the signature of the testator is on the reverse side of the first sheet and is followed by a blank page, over-written only on its reverse side. The reverse side, of third page, is not signed or identified by the testator. It follows in position page 3, where the testator’s signature alone appears.
In the better and more concise language of counsel for the beneficiaries: “ If we treat the paper propounded as having four pages, the obverse and reverse sides of the first sheet being treated as pages 1 and 2, and of the second sheet as pages 3 and 4, we can then say that the will starts on page 1, is continued on page 4, and concluded on page 2.” It is page 2 which contains the signature of testator. This signature is followed
The written language of the three utilized pages is closely consecutive and in order. The entire paper contains internal evidence that the will was all composed and transcribed at the same time. Without the aid of the writing on the fourth page, or in other words on the reverse side of the second sheet, the balance of the testamentary paper is unintelligible. It is manifest that the draftsman of this will began writing on the first page, turned over to the fourth page, which he filled with words, and then went back to the second page, where he ended the will and caused it to be subscribed by the testator and subsigned by the attesting witnesses. As already stated, there is no issue of fraud or forgery involved in this probate proceeding, and there is manifest an intention on the part of the
Had it not been for the decision of the Court of Appeals in Matter of Field, 204 N. Y. 448, I should have no hesitation in holding that prior decisions of this state compelled me to conclude that the paper propounded was not subscribed by the testator at the end thereof within the meaning of the present Statute of Wills. Matter of Whitney, 153 N. Y. 259; Matter of Andrews, 162 id. 1, Matter of Blair, 152 id. 645; affg., 84 Hun, 581; Matter of Conway, 124 N. Y. 455; Matter of O’Neil, 91 id. 516; Sisters of Charity v. Kelly, 67 id. 409. Although in principle these cases are often attempted to be distinguished by reason of certain special features peculiar to each case, I confess I am utterly unable to distinguish this case before me from the principle of those decisions. Those decisions place form above substance. But matter of Field modified this rule, and I am now to determine whether or not this will is within the principle announced in Matter of Field. If it is so, I must pronounce for the will; otherwise, against it.
When I just said “ within the principle announced in Matter of Field ” I should explain what I mean. The principle of stare decisis is not the equivalent of res judicata. The latter term relates more to controversies on pleas in bar and to the particular judgments rendered on the peculiar facts of a given case. It is a very trifling conception of the doctrine of stare decisis to affirm that it applies only when the identical facts are again shown and the court must render a precisely - similar judgment. If that were the true limitation of the doctrine of stare decisis, the difficulty would be that in all human prob
The principle of the adjudications of this state prior to the year 1912 was that our" Statute of Wills required a will to be subscribed by the testator at the physical or actual end or foot of the testamentary document. It would not do prior to 1912 to subscribe a testament in the middle of the paginal order, or even at the logical, or intellectual, or speaking end of a will not written in a consecutive order of pagination. If the adjudications prior to 1912 do not disclose this principle, they disclose nothing else to my mind. It is idle to attempt to reconcile the decisions of our courts prior to 1912 with any other conclusion, and I will not resort to such an effort. There was by those decisions, in short, no such thing as a “ constructive end ” of a will. Since Matter of Field there is a “ constructive ” as well as an actual or physical end of a will.
The history of the English Law of Wills under the English “Wills Act” of 1837 (1 Vict. chap. 26) illustrates what I mean. Section 9 of that act provided “ That no will shall be valid unless it be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction.” The tendency of the English decisions on the act of 1st Victoria was to hold that the “ foot or end ” meant the physical, and not the logical, or speaking, end of the will (Smee v. Bryer, 1 Robt. 616; 6 Moo. P. C. 404; Allen v. Maddock, 11 id. 456), although occasionally the English courts were induced to take a less literal view of the Statute of Wills, and to hold that that statute intended that the testator might sign at the logical, and not the physical, end of the will. The conflict of the decisions and the constant judicial destruction of wills under section 9 of the Wills Act of 1st Victoria created such popular dissatisfaction in England that section 9 of the Wills Act was amended by the Wills Amendment Act of 1852, called “ Lord St. Leonard’s Act ” (15 Vict, chap. 24), which tended to make testator’s subscription valid if it was actually made at the “ logical, or speaking, or intellectual ” end of the will, without regard to the natural arrangement of the pagination of the testamentary medium. But the explanatory act of 1852 is very unlike Lord St. Leonards’ other technical work, as it is, I think, both prolix and confused and not to be imitated here. It contains a saving clause which to my mind nullifies the benefit intended. It provides “ that no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or follows it, nor shall give effect to any disposition or direction inserted .after the signature shall be made.” This reopens
The result of Lord St. Leonards’ Act has been, I think, in England that much oral or extrinsic evidence is admissible to show the actual condition of the testamentary script at the time the testator signed it. The consequence of this line of authority is to make a valid execution of a will in writing more largely dependent on extrinsic evidence than I should think at present expedient in like cases under a statute which requires wills to be in writing. Matter of Blair, 84 Hun, 581, 584; Matter of Will of Hewitt, 91 N. Y. 261, 264. But I have not fully investigated that point of evidence as it is not now here. I have therefore no deep seated conviction on it. Much is to be said for and against the admission of extrinsic evidence in such cases.
But even since the Wills Amendment Act of 1852 in England, the English courts are (where nothing actually dispositive follows the signature of the testator) inclined to ignore the actual order of the pagination of a testamentary paper, and to hold that if the testator signs at the logical or speaking end of an ill arranged continuous script, there is a substantial or constructive compliance with the statute. In bonis Wotton, 1874, 3 P. & D. 159; In bonis Birt, 1871, 2 id. 214; In bonis Ainsworth, Id. 151; In bonis Coombs, L. R., 1 P. & D. 302. Of course these late English decisions, though entitled to great respect as opinions of learned men, are not authorities in this jurisdiction.
Under our present Statute of Wills, and long before the de-. cisión in Matter of Field, the surrogate of this county, in the year 1847, had said that that statute was open to the construction that the end of the will meant not the physical end only (for, as he correctly stated, there are two physical
The case before me I am unable to distinguish in principle from Matter of Field. This testator, Mr. Peiser, signed at the place where the draftsman of the will “ stopped writing in the consecutive order of composition.” The will when read consecutively, “ as the mass of mankind would read it,” has the signature of the testator at the end thereof, within the meaning of the Statute of Wills. This case and Matter of Field much resemble the English case “ Goods of Stoakes,”
Probate decreed.