129 N.Y.S. 5 | N.Y. App. Div. | 1911
The decision of this appeal might well be made to rest upon the reasoning' of the learned surrogate in an opinion handed down, but counsel urges so insistently that the decree should be reversed that we have concluded to point out some further considerations which justify-admitting the paper -to probate as the last will and testamént of the deceased. It is conceded that there is but a single question involved. The paper propounded concededly-conforms toi all of the requirements of the statute (2 R. S. 63, § 40; now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 21), and it is not questioned that .the testator was of sound, disposing mind, free from all undue influences, or that the instrument was executed with all of the formalities -required by law: The question arises over the alleged alterations and mutilations of this will, it being the contention of the contestant that, the will being altered and muti-Jated, it was for the proponent to establish by evidence that the paper propounded was in the same' condition as when-executed by the testator ; that the alterations and mutilations-existed |at the time of the execution and were not subsequently made.j The will was written out by the testator himself, the attestation clause alone being in the hand-waiting, of a clerk in t’ nesses, and there is no anything amounting to re office of one of the subscribing wit-suggestion of fraud or collusion, or of Or suggesting bad faith on the part of
The will is drawn on legal cap paper, double sheets, fastened at the top with a knotted string, the first three pages being written on one side only; the fourth sheet is cut out, apparently with shears, as the edges are notched, and then the matter runs smoothly to the fifth page, except that he closes the fourth page with the provision that the “proceeds therefrom I desire to give to,” and the fifth page opens with'- “To the Methodist Episcopal Hospital,” etc., an error which might happen to one more accustóméd to drawing instruments than the ■ testator. The sixth page, as the same was originally put together, runs the full length of a page, and then on the under side of this page, lapping something over an- inch, is pasted about one-half of a sheet of the same kind of paper, so that this page is about once and a half as long as an ordinary page, and this is filled to the bottom, and it is under this lap that the words above referred to j appear. On the back of this last page,something over half way down, there is a provision giving to the testator’s sister,, the Contestant, anything she is able to find about the place which has not been specifically disposed of, and then, after another spac'e, there is a residuary clause, and then follows the signature of j the testator, and this is followed by the attestation clause, written in by a Miss Williams at the-time of the execution of | the will,_ and this is signed by the witnesses. The words ‘ ‘ If,there is any surplus after all Bills, ” are writtón on the last page!, just before the paper which is pasted on, and on the added paper are the words “and' expenses are paid to go.to the Memorial M. E. Hospital. If they accept, for the rent's, etc., should niore than pay all expense,” and the signature and attestation clause follow immediately. When it is remembered that there is no suggestion of fraud or bad faith on the part of any one; that the testator, a bungler in composition, had laboriously written out this elaborate will, what is there suspicious about ¡these alleged alterations and mutilations; what is there in the fact-that one sheet of paper has been cut out and the will continued upon the next page, and that another sheet of paper had been attached on which the
But if evidence were| necessary to establish that the will is the one which was actujally executed with all the formalities of the law, it is not wholly lacking. The evidence is that the testator brought a paper to the office of Mr. Williams, one of the witnesses, and handed a paper to him, requesting him not to read it, as it was his will, but requesting Mr. Williams to sign the same.; that Mr. Williams called attention to' the necessity of a second witness, and to the requirement of an - attestation clause; that Ithe testator went out and brought in the second witness, andj that Miss Williams drew the attesta7 tion clause. Mr. Cole* the second witness, testifies that “The paper was. doubled up, jjust as Mr. Williams said —in a sort of bunglesome way. He was particular that we didn’t see it.” Miss Williams testified! that the paper was doubled up and that she did not see anything more than the last part óf the page. She says: “I didn’t unfold it. I noticed that it consisted of several pages, but it was crumpled up somewhat. I had to fold ’ it down with my hand in. order to write the . attestation clause.”- Any one who has had any experience in handling papers of this character knows that it is very easy and simple to fold them accurately so long as all of the pages are of equal size, -but that it is practically impossible to ■ make a compact.package if one ¡sheet is longer than the others, and • particularly if there is mucilage used in the fastenings at the point- where the unifcjrm-sized sheets come to the end. The first four sheets of the wifi are clearly creased; they bear evidence of having neveij been folded in anything other than the regular way, while the long sheet is badly mussed and shows the usual “bungiesóme’f way of such pages, and the description which the witnesses give indicates clearly that the papers, at the time of the execution, were in their present condition,'
Nothing is more common than for persons to be called upon to witness the execution of wills where they are not permitted to know the contents of the same, and if the presence of a mere correction in the amount of a bequest, or in the detail of administration, or the cutting out of a sheet of paper from a bound group of such papers, gives rise to the presumption that the paper has been changed after the execution, there are many wills extant which could not be admitted to probate. We do not believe that is the law of this State, and particularly where, as here, no suggestion of fraud or bad faith is present.
The decree appealed from should be affirmed, with costs.
Jenks, P. J.., Thomas, Carr and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Richmond county affirmed, with costs.