17 Misc. 500 | N.Y. Sur. Ct. | 1896
The proceeding to prove this paper was -brought here on the petition of George William Gedney, a nephew of deceased.
William TI. Gedney died at the town of Marlborough, in tins county, on the 18th day of January, 1896. He left him surviving a brother, George W. Gedney, who resided at Milton, in this county. George W. Gedney had two children living at the timé, George William Gedney, a son, and Mary Eleanor Gedney, a daughter, nephew and niece respectively of William H. Gedney. Upon the filing of the petition, February 26, 1896, verified by the said George William Gedney, citations were issued out of this court on that da.y to said George W., Mary Eleanor and Ge-orgo William Gedney to attend the probate of said will on' the 9th 'day of March, 1896. On the 3d day of March, 1896, George W. Gedney, the brother of William H. Gedney, died, at Milton, iii this county.
The paper purporting to'be the last will and testament of William Ii. Gedney is very.brief, and is as follows:
“ I, William H. Gedney, of the town of Marlborough, county '¿'¿'Ulster and state of New. York, do hereby declare and publish this as'my last' will'and testament.
“ I hereby devise and bequeath to my brother, George W. Gedney, all my property, both real and personal, to have and hold during his natural life, and at his death to be divided equally between his two children, George William Gedney and 'Mary Eleanor Gedney, each to share and share alike.
“ In witness whereof I have hereunto set my hand and seal.
[L. S.] (Signed) Wm. H. Gedney.
“ I do hereby constitute and appoint George W. Gedney and George William Gedney as the executors of this my last will and ’testament..
“ Dated October 19, 1895.
“ Signed and sealed in the presence of the following named*87 witnesses at tbc date thereof subscribed by .William II. Ge.dney, the testator therein named, in the presence of us and each of us, and at the time of making such subscription it was declared by .the. said testator as his last will and testament.
“ Edwakd M. Ckajft, Milton, Ulster Co., N. Y.
“EdeaNok M. Southaed, Milton, Ulster Co.,.N. Y.”
It will be seen by an inspection of the will that the signature of the deceased is in the middle part thereof, and that the clause appointing executors and the date follows the, signature. This clause was followed closely by the attestation clause, which was signed at the end by the witnesses to the will.
Upon the attention, of George W. Gedney, the attorney, and one of the executors, being called to the position of the signature, he stated that the matter was satisfactory and that no objection would probably be made to the probate of the will. Later, however, he filed a brief here, in which he asked that the will be not admitted to probate.
Under the peculiar operation of the Taxable Transfer Law it makes a difference of several hundred dollars to this nephew and niece of the deceased whether they take this property as re-maindermen under this alleged will, or whether it is inherited by their father under the Statute of Descent and Distribution, and they take from him as his heirs at law and next of kin.
The requirements of the Revised Statutes as to the proper execution and attestation of a will, so far as they are necessary for deciding the question here raised, are as follows:
“ Section 8. Every last will and testament of real or personal property, or both, shall be executed and attested in the following 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.” 2 R. S. 68, see. 40.
The question now presented for my determination is, is this
The only evidence offered here was the ordinary statutory proof as to the execution of the will. One of the'witnesses,' Eleanor M. Southard, is dead, and her signature and the signature of the deceased were proved by other witnesses, in addition to the usual testimony of the surviving subscribing witness.
A precisely similar case to this was brought before the surrogate of Monroe county in 1887 in the Matter of the Last Will of Bernard Nies, reported in 13 N. Y. St. Rep. 756. The surrogate of that county, in á well-considered opinion, held that' the will could not be admitted to probate, and that decision does not appear to have been appealed from.
In the Sisters of Charity v. Kelly, decided by the Court Of Appeals in 1876, 67 N. Y. 409, the deceased signed his name in the middle of the clause appointing an executor, and also in the middle of the attestation clause.' The witnesses signed their names immediately following the will, and not at the end of the attestation clause. The opinion therein was written by Judge Eolger, was concurred in by all the court, and they held that the paper could not be admitted to probate.
Judge Folger says: “ 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 an important part 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 án 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 «taunts-are,created;in?behalf ■ of natural persons, important charitable institutions are founded, or other large and far-reaching designs are shaped, and.
It was held in one of the leading cases on the four requisités prescribed by the statute for the formal execution of wills, Rem-sen v. Brinckerhoff, 26 Wend. 325, as follows: “It is obvious that every one of these four requisites, in contemplation of the statute, is to be regarded as essential as another; that there must be a concurrence of all to give validity to the act, and that the omission of either is fatal.”
It was held in the Matter of Sanderson, 9 Mise. Rep. 514, that where provisions in relation to the disposition of the estate-intervene between the signature of the testator. and.fthe attestation clause, there is no subscription at the end of the will as required by the statute.
Viewed in the light of these decisions, and the plain words of the statute, it is evident that the paper offered cannot be ad-
In construing the proper execution of wills, it is not the intention of the would-be testator, but the intention of the legislature, which must govern. Ry the common law a man could not devise his lands.
Wills, therefore, and testaments, rights of inheritance and succession are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid. 2 Blackstone, 12.
The legislature, therefore,, having enacted laws .governing the transmission of property to take effect at the death of the transmitter, tiróse who desire to avail themselves of the law of wills must bring themselves within its provisions. The statute having prescribed that the signature of the person making the will and the subscribing witnesses shall be at the end of the will, there they must be found, and the witnesses and the would-be testator must agree as to where the end of the will is.
It will not do to allow the court to determine in every particular case what is a necessary part of the will, and what superfluous, nor to decide that the intention of the deceased can be effectuated by. admitting that part of the paper propounded before his signature to probate as his will and rejecting that which may follow; if so, we should have the will of the court instead of the will of the deceased.
It so happens in this case that by the death of the brother the property of William H. Gedney, the deceased, will eventually ■be received by his nephew and niece to whom he endeavored to transmit the remainder by his paper writing bearing date October 19, 1895.
Too much care cannot be exercised by. scriveners of wills in not only plainly expressing the desire and intention of the makers thereof,- but also in themselves fully understanding the requirements of the proper execution of wills and of insisting
Probate of the paper offered as a will of William H. Gedney is denied, and an order or decree may be handed up to that effect.
.Ordered accordingly.
