18 Mills Surr. 558 | N.Y. Sur. Ct. | 1917
The contestant has filed objections to the
probate of the alleged will on the ground that the paper propounded as a will is not executed as a will and that it is not signed at the end thereof by the testatrix; that the proof1 is insufficient to show the due execution of the will, and that the petitioner is not a person interested as executor or otherwise, and is not in a position to ask for the probate of the said paper, and asks that probate be denied. There is no allegation of fraud or undue influence.
The following is a copy of the paper offered for probate, the same having been written on one page:
“ I Cynthia Van Tuyl of the town and County of Schoharie, State of Rew York, being of sound mind and understanding, do make my last will and testament, in manner and form following ,
First, I dir.ect that my necessary funeral expenses, (which •should not exceed Fifty Dollars) and inscription on my tomb stone and all my individual debts be first paid.
her
“ Cyxthia Vast Tuyl X
mark
In testimony whereof I have hereunto set my hand and seal ■and published and declared this to be my last will and testament in the presence of the witnesses named below this 3rd day of July 1914 ■ •3rd
I hereby appoint P. S. Clark as my executor.
Signed, sealed, declared and published by the said Cynthia Van Tuyl as and for her last will and testament, in the pres•ence of us, who at her request, and in her presence, and in the presence of each other have subscribed our names as witnesses hereto.
“ Edna W. Vah Tuyl “Gbicella Vast Tuyl.”
The subscribing witnesses in their written deposition testified that the testatrix in their presence subscribed her name to the said instrument by making her mark on said instrument where it appears following the words, “ Cody, Wyoming, Cynthia Van Tuyl,” her said mark appearing between the words “ her ” ,“ mark.”
Section 21 of Decedent Estate Law says: “Every last will and testament ’ of real or personal property, or botli shall be executed and attested in the folowing manner:
“ 1. It shall be subscribed by the testator at the end of the will. * * *
“ 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at. the end of the will •at the request of the testator.”
Testamentary jiapers similar to the above have been the subject of serious controversy in the courts for many years. To decide whether this instrument was signed by the testatrix “ at the end,” involves examination of a large number of cases
The natural desire of the court is, if possible, to carry out the intention of a testator, as expressed in his testamentary paper, but in this case where the question of the legality of the execution of a will is to be determined the Court of Appeals in Matter of O’Neil, 91 N. Y. 516, and in Matter of Whitney, 153 id. 259, has spoken to the following effect, namely: That while wills are interpreted so as to carry out the intention of the testator, that rule cannot be invoked when construing' the statute regarding their execution, as in the latter case courts do not consider the intention of the testator, but that of the legislature.
It is unnecessary here to discuss, the evils against which the statute is intended to provide or the safeguards which are designed to be thrown around testamentary dispositions by the statute, for the object of the law is well understood and is stated in Matter of Conway, 124 N. Y. 457, as well as in several other cases cited herein. In Matter of Whitney, the court further states: “ This statute has always been strictly construed and the will must be a completed whole signed by the testator and witnesses at the end thereof.”
On the question of how material the facts and circumstances surrounding the execution of a will are, in Matter of Hewitt, 91 N. Y. 261, the opinion discloses that the counsel for the proponent in the Surrogate’s Court claimed the right then and / there to examine his witnesses to give proof of certain facts stated by him, but the surrogate declined to hear any evidence on the part of the proponent, and made a decree denying probate of the instrument upon the ground that the attesting witnesses did not sign their names at the end thereof. The Court of Appeals declared: “ There was no error committed by the surrogate in refusing to bear the proofs offered on the part of the proponent. It would have been wholly unavailing to show
The following three cases cited in the brief of the proponent are plainly distinguishable from the ease at bar. In Younger v. Duffle, 94 N. Y. 535, the testimonium clause and a recital or certificate by a notary in the Kingdom of Spain (where the will was executed) of certain formalities follow the disposing parts of the will, and immediately thereunder followed the signatures of the testator, the three subscribing witnesses and the notary. The court in that case held that the testator and witnesses signed at the end of the will. It will be observed that nothing followed the signature of the testator and the signatures of the witnesses. In other words, no writing intervened between the signature of the testator and the end of the will.
In Matter of Noon, 31 Misc. Rep. 420, the testatrix prepared a will in her own handwriting, leaving a blank in the testi
In Matter of DeHart, 67 Misc. Rep. 13, the will was holographic and was subscribed by the testatrix in substantially the same place and under the same circumstances as in the case last cited.
We will next discuss the question whether that part of the
her
instrument preceding the words “ Cynthia Van Tuyl X” may
mark
be admitted to probate rejecting the part’ following including the appointment of an executor.
In the consideration of this question we are enlightened by several authorities among which Sisters of Charity v. Kelly, 67 X. Y. 409, has frequently been cited with approval.
The court said, after discussing other questions: “ Besides this, it may not be said that the end of the will is at the place where the name ‘ J. Kelly ’ appears. There follows it quite important parts of a will — the nomination of an executor, and the revocation of former wills. It is said that the whole testamentary disposition preceded that name, and that on rejecting the part naming an executor, there can be appointed an administrator with the will annexed. We cannot-be sure that such was the purpose of the testator. There are cases, in which quite a material part of the intention and forecast of the testator, centers in the selection of persons to execute his testamentary purpose; where important trusts are created in behalf of natural persons, important charitable institutions are founded, or other large and far-reaching designs are shaped, and the administration' and execution of them committed to the executors of the will, who are not named until the concluding clause
However much the court may desir-e to work out the apparently main testamentary scheme of the testator we cannot disregard the authorities and especially the language used by the court in Matter of Blair, 84 Hun, 581; aft'd. on opinion below, 152 N. Y. 645. “ But the fact that no harm will be likely to result in this case from a probate of that part of the will which precedes the first signature of Blair, should not have much weight with the court, for the more important Question after all is, whether the decision will establish a good or bad precedent.”
In examining authorities we find the following two reported cases in which the form of the will was exactly similar to the one under consideration and in which also the disposing parts of the will precede the signature of the testator and the nomination of the executor, the date and the attestation clause follow the signature. Probate was denied in both cases. (Matter of Ries, 13 N. Y. St. Repr. 756, decided in 1887, and Matter of
The Court of Appeals laid down the same doctrine in Matter of O’Neill, 91 N. Y. 516, saying: “ The claim that such parts of the will as precede the signature may be received and the remainder rejected cannot be supported. The statute denies probate to 'a will not executed in accordance with its provisions. It is either valid or invalid as an entirety as far as its execution is concerned. It is undeniable that the portion following the testator’s signature contains material provisions and formed part of his scheme in making a will. At all events we have no way of determining the extent to 'which he deemed them material, and cannot give effect to one part and deny force to another.”
Matter of Field, 204 N. Y. 448, has been given consideration but the form of the will in that case, it will be observed, greatly differs from the will here. However, the court on page 457, in the Field case, laid down the rule “ The natural end of a will is where the draftsman stopped writing in the consecutive order of composition * * *. The will before us when read con-
secutively, as the mass of mankind would read it, has the signature at the physical and natural end thereof.” In the Yan Tuyl will, the signature of the testatrix is not where the draftsman stopped writing in the consecutive order of composition, neither is it at the physical and natural end.
So far as I have been able to ascertain, after considerable research, the decisions are unifrom in holding that papers in the form of, and signed as, the one under consideration are not entitled to admission to probate under the statute quoted hereinabove. The paper propounded for probate in this proceeding is not subscribed by the testator -at the end, and probate thereof and of the whole thereof is denied.
Probate denied.