187 A.D. 309 | N.Y. App. Div. | 1919
The surrogate of Westchester county has denied the petition of decedent’s widow for letters of administration upon his estate, “ on the grounds that a certain paper writing filed in this court on November 27th, 1918, and alleged in said petition, upon information and belief not to be a valid will of said Anthony Victor Billet, deceased, although purporting so to be, exists.”
Decedent died a resident of Westchester county, at New Orleans, La., on November 5, 1918, leaving personal property to the amount of $42,266.31. On November 27, 1918, a petition for letters of administration was filed in the Surrogate’s Court, Westchester county, by decedent’s widow, alleging, among other things, that petitioner had made diligent search and inquiry for a will of said decedent and had found none; but that a certain paper writing discovered by petitioner
A citation was thereupon issued and served upon the parties interested. Frances Billet, the sister, appeared and filed an answer.
Petitioner also filed her affidavit giving in form of question and answer an interview had with each of the witnesses to the alleged paper writing, which provides for a legacy of $250 to St. Patrick’s Church of Galveston; $500 to respondent; to appellant all household and personal effects, insurance and cash in the bank, and directs all decedent’s stocks and bonds to be converted into cash and invested as therein stated, the income to be paid to appellant for life, and upon her death the principal to respondent, Frances Billet, “ or her heirs.” Appellant and respondent are the executors therein nominated. It contains no attestation clause, and at the foot thereof is what purports to be a codicil, merely signed by the testator.
The two witnesses affirm that decedent did not sign the paper writing in their presence, or declare it to be his will, or say or do anything from which they obtained the impression that the paper was a will, and that they did not sign it in each other’s presence. The will is a holograph.
The widow declines to petition for its probate; all parties in interest were before the court; respondent consented to the issuance of letters to appellant, and does not oppose this appeal, but the surrogate on his own motion has denied the petition for letters.
A paper writing purporting to be a last will and testament of a decedent, which is simply filed in the surrogate’s office, does not thereby, ipso facto, become a valid will, but can only be established as such in a proper proceeding initiated for that purpose. (Matter of Cameron, 47 App. Div. 120; affd., 166 N. Y. 610; Matter of Carter, 74 Misc. Rep. 1; Matter of Dressel, 102 id. 648, 649.) There was, therefore, no valid will before the surrogate at the time of this application.
It is all very well to say that wills of testators may not be destroyed by life tenants and remaindermen (Metcalfe v.
The order is, therefore, reversed, with ten dollars costs and disbursements payable out of the estate.
Jenks, P.'J., Mills, Blackmar and Jay cox, JJ., concurred.
Order of the Surrogate’s Court of ¥v estchester county reversed, with ten dollars costs and disbursements payable out of the estate, and proceeding remitted to said court with directions to proceed in accordance with opinion.