161 Misc. 77 | N.Y. Sur. Ct. | 1936
On or about September 29, 1935, the decedent suffered a partial stroke on his right side and was taken to the Physicians Hospital in the city of Plattsburg on the morning of October sixth. He remained there until his decease, on or about November 22, 1935. According to the testimony of his attending physician, he was unable to use his right arm and right leg and he had difficulty in his speech by reason of a partial facial paralysis. He was sixty years of age. He was a widower and was survived by three first cousins.
On September 20, 1933, the decedent executed his last will and testament prepared by his attorney, James B. Steams. The will was retained by the testator and a copy thereof by Mr. Stearns. This mil provided a fund for the perpetual care of his cemetery lot in the sum of $150, made two minor specific bequests and a legacy
On October 11, 1935, Mr. Stearns was advised that Mr. Pardy desired to see him at the hospital. Mr. Stearns called at Mr. Pardy’s room and found him in bed, with his head propped up. According to Mr. Stearns’ testimony, Mr. Pardy advised him that he desired Charlotte Penfield to have most of his property. Mr. Stearns produced a copy of the will dated September 30, 1933, read the same to Mr. Pardy and asked the latter whether he wanted a change in the residuary clause so that Charlotte Penfield would be the residuary legatee instead of Katherine Crook White, with the other provisions of the will remaining the same. Mr. Pardy said that was what he wanted. Mr. Stearns then drafted a codicil and the same was executed by Mr. Pardy. Mr. Stearns and one John Darrah, an employee of the hospital, acted as attesting witnesses. The testimony does not indicate anything unusual with respect to the execution of the codicil, except the fact that Mr. Stearns, knowing that Mr. Pardy could not use his right hand, had Mr. Pardy execute the same by his mark. The usual requirements pertaining to the execution of a will would seem to have been followed. Both of the attesting witnesses testified to the testamentary capacity of Mr. Pardy at the time of the execution of the codicil. At no time during the completion of this matter did Mr. Stearns ask Mr. Pardy whether the original will of September 20, 1933, was in existence, nor did Mr. Pardy say whether it was in existence. Mr. Stearns testified that he assumed that it was in existence. Upon Mr. Stearns’
“ Whereas I Frank Pardy of the village of Rouses Point, Clinton County and State of New York, did make my last Will and testament dated September 20, 1933,
“ Now, therefore, I make this codicil to said Will.
“ I hereby revoke the eighth clause of my said will giving the residue of my estate to Mrs. Minor White, née Katherine Crooke of 144 Neville Place, Corina, California and daughter of Ralph and Clara Crook formerly of Rouses Point, N. Y., and instead and place thereof, give "the said residue, bequeathed and devised unto Charlotte Penfield of Rouses Point, N. Y. and assistant for many years in my store at that place. . I do this in view of her valuable and faithful services in my store in said village.
“ Hereby ratifying and confirming all the other paragraphs of my said will, I affix my hand and seal this eleventh day of October, 1935.”
Charlotte Penfield, mentioned in the instrument above mentioned, had at the time of the execution thereof been in the employ of Mr. Pardy as a clerk in his store at Rouses Point about eleven years. She continued in that capacity until his decease.
Except for the examination of the attesting witnesses, as above indicated, no proof was offered to indicate that Mr. Pardy lacked testamentary capacity at the time of the execution of the codicil. All interested parties stipulated that no formal objections to the instruments offered for probate need be filed, that the trial of the issues by a jury be waived, and that all issues of probate should be decided by the court with the same force and effect as if formal objections had been filed. At the close of the testimony, the proponent moved that the will of September 20, 1933, be admitted to probate as a lost will; that in case this motion was denied that the will of September 20, 1933, together with the codicil above mentioned be probated as decedent’s last will and testament; and in case both motions were denied that the codicil be probated as the last will and testament of the decedent.
As the objectors to the probate of either or both of these instruments did not submit any proof tending to indicate lack of testamentary capacity on the part of Mr. Pardy, either at the time of the execution of the will of September 20, 1933, or the codicil dated October 11, 1935, I am satisfied from the testimony offered
Can the will of September 20, 1933, be admitted to probate as a lost will under section 143 of the Surrogate’s Court Act, without reference to the codicil above mentioned?
No evidence was submit! ed to indicate that “ the will was in existence at the time of the testator’s death or was fraudulently destroyed in his lifetime,” as required by section 143 of the Surrogate’s Court Act. If a will, shown once to have existed and to have been in the testator’s possession, cannot be found after his death, the legal presumption is that he destroyed it animo revocandi. (Matter of Staiger, 243 N. Y. 468, 472; Matter of Cunnion, 201 id. 123; Matter of Kennedy, 167 id. 163; Collyer v. Collyer, 110 id. 481; Knapp v. Knapp, 10 id. 276.) As was said in Matter of Staiger (supra, at p. 472): “ There is no proof that Mrs. Staiger destroyed her will, but when a will previously executed cannot be found after the death of a testator there is a strong presumption that it was revoked by the testator and this presumption stands in the place of positive proof. One who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof.”
Here there is neither positive proof nor adequate proof, in fact there is no proof, to overcome the presumption that the will of September 20, 1933, last seen in the testator’s possession on the day it was executed, was revoked by the testator. This instrument alone cannot, therefore, be admitted to probate as the last will and testament of decedent.
Can the instrument of September 20, 1933, with the codicil of October 11, 1935, together be admitted to probate as constituting the last will and testament of decedent?
From the quotation above mentioned in Matter of Staiger (supra, at p. 472) it is to be noted that the court states that the proponent of a lost will, last seen in the testator’s possession, must assume the burden of overcoming the presumption that it was revoked by the testator by “ adequate proof.” An extended study of the numerous cases concerning the probate of lost wills gives little light on the question of what is to be deemed “ adequate proof ” to overcome such presumption. It is clear that oral declarations' of the testator, when not a part of the res gestee, are not admissible either to prove the execution of the will or its revocation or to repudiate the presumption of revocation from the fact that no will is found after death. (Matter of Staiger, supra, p. 472; Matter
I, therefore, hold that the legal effect of the codicil of October 11, 1935, was to republish the will of September 20, 1933. The due execution of the latter instrument and that of the will of September 20, 1933, having been shown, and the testamentary capacity of the testator at the time of the execution of both instruments having been adequately proven, I hold that the instrument of September 20, 1933, with the codicil of October 11, 1935, jointly constitute the last will and testament of the decedent and should be admitted to probate as such.
Having determined that the instruments of September 20, 1933, and October 11, 1935, together constitute and should be probated as the last will and testament of the decedent, it would seem unnecessary to pass upon the question of whether the instrument of October 11, 1935, alone could be admitted to probate as the last will and testament of decedent. However, it may not be amiss to express the views of this court on that matter, having in mind that it may be important at a later date in the determination of whether Charlotte Penfield is qualified to take the estate bequeathed to her in the codicil by reason of her testimony to the will of September 20, 1933. There is authority for the proposition that a codicil may be probated as an independent instrument when the will to which it refers has been rendered inoperative by law, as by marriage of a woman (Brown v. Clark, 77 N. Y. 369), or to one which was executed while the testator was of unsound mind or under restraint. (Cook v. White, 43 App. Div. 388; affd., 167 N. Y. 588.) However, the rule permitting the probate of a codicil as an independent instrument from the will to which it refers requires that it be complete in itself as to be capable of execution and not dependent upon the will to which it attempts to refer. (Matter of Emmons, 110 App. Div. 701, 704, 705.) In the latter case the will to which the codicil referred was unsigned and could, therefore, not be admitted to probate. In the codicil the testator made an additional bequest of $10,000 and appointed an executor. It
Prepare decree accordingly.