165 Misc. 36 | N.Y. Sur. Ct. | 1937
The executors have filed an answer in which it is alleged that, in the probate proceedings herein, the petitioner was a necessary witness to the probate of the will and testified as such to secure its probate; that, by reason thereof, the legacy of $3,000, given to her in a codicil to the said will, is void by virtue of section 27 of the Decedent Estate Law; and that the petitioner is not interested in the estate or entitled to the payment of any legacy or to compel an accounting by the executors.
The facts are these: On July 24, 1935, the decedent, a resident of Yonkers, N. Y., executed his will. The will revoked all former wills; directed that his just debts and funeral expenses be paid; gave instructions as to interment and the erection of a suitable monument and headstone; gave to his daughter, Elizabeth S. MacDougal, his automobile and dishes; to his son, Martin Smith, Jr., his jewelry, clothing and personal effects, and to his said son and daughter his household furniture and furnishings, to be equally divided; gave to the son all moneys which testator had advanced or loaned to him, and then divided the residue of his estate in the proportion of two-thirds to his daughter, Elizabeth S. MacDougal, and one-third to his son, Martin Smith, Jr. Elizabeth S. MacDougal and Martin Smith, Jr., were named as executors without bond. The will contained the usual attestation clause and was signed in the presence of Walter B. J. Mitchell, the attorney who prepared the will, and Emma A. Alverson, this petitioner.
On February 17, 1936, the decedent executed a codicil to said will in the following language:
“ In the name of God, amen.
“ I, Martin Smith, residing in the City of Yonkers, County of Westchester and State of New York, being of sound mind, memory and understanding, do make, publish and declare this instrument to be a codicil to my Last Will and Testament in the manner following:
“ First. I give and bequeath to Emma A. Alverson, a very dear friend of the family for many years, the sum of Three thousand ($3,000.00) dollars.”
This paper was prepared by the same attorney who prepared the will. It contained the usual attestation clause and was signed at the end thereof by Lawrence B. Faiella and Helen V. Smith, as attesting witnesses.
The decedent died June 16, 1936. Thereafter, a petition was presented by Elizabeth S. MacDougal, one of the executors named in said will, for the probate of the will and for the denial of the probate of the codicil. After various adjournments, the objections to the probate of the codicil were withdrawn and, on September
In the estate tax proceedings, the estate, consisting of real estate, stocks, bonds and other securities, was appraised at $93,631.34 gross, and $54,109.33 net.
The question is whether this petitioner, a witness to a will under which she derived no interest, loses a bequest made to her in a codicil to the will, which codicil was subsequently made and to which the petitioner was not a witness.
Section 27 of the Decedent Estate Law, so far as material here, provides as follows:
“ § 27. Devise or bequest to subscribing witness. If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.”
Under the common law of England, where a legatee or devisee named in a will became a subscribing witness to it and it could not be probated without his testimony, the will was void.
In Matter of Dwyer (192 App. Div. 72, at p. 76) the court said: “ It was the common law of England that where legatee or devisee named in a will became a subscribing witness to it and it could not be probated without his testimony, the will was void. Many wills were drawn by laymen unfamiliar with this principle and cases frequently arose where great hardship was worked and the wishes of the deceased were entirely frustrated by the fact that a devisee or legatee named therein had acted as a subscribing witness to a will and it could not be probated without his testimony. To remedy the evils and hardships growing out of that situation a statute was enacted which deprived the witness of his interest as legatee or devisee under such a will, and thereby made him a competent witness. (25 George II, chap. 6; 2 Black. Com. 377; 4 Kent Com. [4th ed.] 508; Fowler’s Decedent Estate Law, Ann. 223.) A statute to the same effect was enacted in this State, and was held to be peremptory and made a devise to a witness to a will void. (Jackson v. Denniston, 4 Johns. 311.)
“ The Legislature, for the purpose of overcoming this hardship, provided by statute, which took effect on January 1, 1830: ‘ But if such witness would have been entitled to any share of the testator’s estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him as will not exceed the value of the devise or bequest made to him in the will.’ (R. S. pt. 2, chap. 6, tit. 1, art. 3, § 51; 2 R. S. 65, § 51.) That statutory provision was finally embodied in section 27 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], § 27).
“ These progressive steps by statute thereby cured the two evils, first, by preventing the will from being declared void, and second, by saving to the witness the share which he would have inherited, not exceeding the value of the provision made for him in the will, 1 in case the will was not established.’ ”
A codicil is defined to be a written supplement or addition to an already executed will. Its purpose is to change, add to, enlarge or restrict, or annul the provisions of the will to which it refers, or it may revoke the will altogether. It is, in reality, merely a little will. (7 Heaton [5th ed.], p. 3; Matter of Greenberg, 141 Misc. 874, 881; Matter of Miller, 119 id. 4.) It is to be taken as a part of the will, all making but one testament. (Bloodgood v. Lewis, 209 N. Y. 95, 103; Dec. Est. Law, § 2.)
The executors contend that the codicil in this case is not an independent testamentary instrument which can stand separate and apart from the will; that by its terms the testator stated that the instrument was a codicil to his will; that it cannot be separately proven while the will exists; that to give it validity, the will must be proven and, to prove it, this petitioner is a necessary witness.
There is no doubt that the testimony of Emma A. Alverson was necessary to the probate of the will itself. Does this fact bar her as a legatee under the codicil? I think not. What would be the effect if the will itself, for any cause, were incapable of being proven as such? Would the codicil also fall?
It was undoubtedly the intention of the testator that this instrument, the codicil, should operate in connection with the will and should be an addition thereto.
Matter of Emmons (110 App. Div. 701) is a case where the testator attempted to execute his holographic will, making his mother the sole legatee and devisee. It was executed by him in the presence of only one witness. Thereafter he properly executed a “ codicil to my last will and testament, bearing date-, 190-.” The surrogate admitted both papers to ■ probate. An appeal was taken. The Appellate Division reversed the decree appealed from in so far as it admitted to probate the paper purporting to be the will and in all other respects affirmed the decision of the surrogate. In its opinion the court said:
“ A codicil may modify the provisions of a will or supersede them entirely, or simply add to the disposition by introducing new beneficiaries. A validly executed will may have been lost and be incapable of proof, and yet the codicil, so far as it goes, is operative. (Newcomb v. Webster, 113 N. Y. 191.) A codicil executed according to the formalities of the statute is a final testamentary disposition, and if there be an existent and complete will, it takes it up and incorporates it. (Matter of Campbell, 170 N. Y. 84.) If, however, there be no such existent and validly executed will, and if the codicil be so complete in itself as to be capable of execution, then it must necessarily stand and be given the force of valid testamentary disposition.
“ The codicil in question, so far as it goes, is entirely complete. The carrying out of its provisions in no sense depends upon the will to which it attempts to refer. It simply carves out of the estate a legacy and bequeaths it to an individual capable of taking. Besides, the instrument appoints executors of the testator’s estate. If it contained no other provision, this would alone entitle it to probate. (Matter of Davis, 105 App. Div. 221; affd., 182 N. Y. 468.) ” (See, also, Matter of Steiner, 142 Misc. 710.)
In the brief of the executors they rely to some extent on Matter of Nokes (71 Misc. 382). In that case the court found that the will of the testatrix had been destroyed by her animo revocandi. On an application to admit the codicil to probate the court held that the propounded paper was not declared as a will and that
Upon facts not unlike the Nokes case, the late Surrogate Fowler said in Matter of Francis (73 Misc. 148, 160, 161):
“ But it is urged on me that it has been held by the surrogate for Kings county that a codicil never has an independent existence as a testamentary disposition, and that where a will has been revoked an instrument purporting to be a codicil to such will is not probative. Matter of Nokes, 71 Misc. Rep. 382. On an examination of that decision I do not find warrant for so extensive an assertion. The learned surrogate for Kings county distinctly states in substance in his opinion that it is conceivable that an instrument called a codicil may under some circumstances be an independent and self-sufficient will. Upon the facts before him he found that the particular codicil offered to him for probate had no such independent existence. This is all I make out of that case.
“ That a ‘ codicil ’ may now, under some circumstances, be separately probated as an independent testamentary instrument under the existing Statute of Wills of this State, I entertain no doubt. The mere name of ‘ codicil ’ has no deterrent effect on its probative quality. Any writing may be a will if executed pursuant to the Statute of Wills animo testandi. I lately so held in the case of a mere letter, which the exigency of a precarious human existence compelled the testatrix to convert into her will. So any supplemental or posterior writing, if executed pursuant to the Statute of Wills animo testandi, continues to be a codicil. ‘ Will ’ and ‘ codicil ’ are ancient terms of the great system of jurisprudence which is binding in its entirety on the surrogates. The meaning of such terms is to be found in the same body of law, needless at this time, to define in its content or extent. The Statute of Wills contemplates the existence and employment of ‘ codicils ’ (2 R. S. 68, 71, now § 2, Decedent Estate Law) as does the present ‘ Surrogate’s Law ’ (Code Civ. Pro. § 2514, subd. 4). This is in conformity with the old law of wills (1 R. L. of 1813, 364, § 20), embracing the Statute of Wills (32 Hen. VIII) and the Statute of Frauds (29 Car. II), both once in force in New York.
“ I find no warrant in the existing law of New York for the statement that a testamentary writing, executed pursuant to the Statute of Wills animo testandi, is not independently probative because it is termed a codicil or is in fact a codicil.’
1 Schouler on Wills, Executors and Administrators (§ 534, p. 612), speaking of the competency of witnesses to a will, says: “ The interest to disqualify means at the time of the attestation, and the fact that a witness subsequently became interested under a codicil is immaterial.” In a foot note to the same volume, at page 614, it is stated that “ section 15 of the act of Victoria [Statute of Wills] annuls every beneficial devise, legacy, interest, gift, etc., to any attesting witness, or the wife or husband of such witness. The annulment applies of course only to the instrument actually attested, and not so as to invalidate one’s interest under another will or codicil. Tempest v. Tempest, 2 Kay & J. 635; Denne v. Wood, 4 L. J. 57.” (Italics mine.)
It is said that, under the laws of England, a gift by will to a legatee is not forfeited by his attesting a codicil confirming the will. The English decisions summarizing this view are aptly set forth in Trotter v. Trotter (L. It. 1 Ch. 764 [1899]). In that case, Charles Vaughan Trotter, by his will, appointed one John Trotter, a solicitor, as one of his executors and trustees and directed that his said trustee, John Trotter, notwithstanding his acceptance of the trusteeship, should be allowed all professional and other charges for his time and trouble, which, if employed as solicitor to his trustees, not being himself a trustee, he would be entitled to make. John Trotter was one of the attesting witnesses to the will. Three years later the testator made a codicil to his will, referring to it, and making an additional bequest to a niece in substitution for a bequest in the will. This codicil was not attested by John Trotter. Later, the decedent made a second codicil to his will by which he made an alteration in the dispositions of his will, and then proceeded to approve and confirm his will and first codicil in every other detail and respect. This second codicil was attested by John Trotter. It was admitted that, had the will stood alone, John Trotter would not have been entitled to charge for profit costs, as he was one of the attesting witnesses to the will, and the question was whether the duly attested first codicil re-established the gift in the will and whether John Trotter had lost the benefit of this gift by reason of his having subsequently attested the second codicil. The court said: “ Had the matter rested on the will and first codicil alone, it is clear upon the authority of Anderson v. Anderson (L. R. 13 Eq. 381) that John Trotter would have been
“ I think the will is entitled to probate without the codicil being proven, or established; it is not necessarily a part of the proponents’ case; it was not necessary for the proponents in order to prove the will, or ask for its probate to introduce proof as to the codicil.
“ I am of the opinion, however, that a beneficiary does not lose his rights under a will, in consequence of his being an attesting witness to a codicil, ratifying and confirming the will, or by reason of his giving evidence as such. I have not been able to find any decision in point in this State; yet there is English authority on the subject which sustains my view. Denne v. Wood, 4 L. J. Ch. 57; Tempest v. Tempest, 2 Kay & J. 635.
“ It has been said that a bequest of a legacy is not void because the legatee attests a codicil which gives him nothing; neither does a residuary legatee of a share of the residue lose his title by attesting a codicil. Gurney v. Gurney, 3 Drewry, 208; Marcus v. Marcus, 57 Law Times, 399.
“ In the case at bar no provision is made for the subscribing witnesses in the codicil; if the said witnesses had attested the will, and were necessarily sworn upon a hearing for its probate, undoubtedly the bequest or devise to them would be void; but this will could be and was proved without the evidence of either of said beneficiaries, and the legacy to them is valid, and the will entitled to probate.
“ They were not witnesses to the execution of the will within the scope and meaning of the statute above referred to; neither was their evidence necessary to establish the will. Had they been sworn they would have testified to the signing and attesting of the codicil, not to the execution of the will. They attested only the instrument to which they put their names.
“ The legacy to a subscribing witness to a will is not void where the will can be proven without the testimony of the witness, as
“ This will has been proven by the unchallenged evidence of the two subscribing witnesses. The codicil, indorsed thereon, subscribed by the two principal beneficiaries named in the will, has not been offered for probate, excepting as urged by the objections.
“ I have come to the conclusion herein that in order to obtain probate of this will it is not necessary for the proponents to offer and establish the codicil; and, again, if it were necessary, and had the subscribing witnesses to the codicil been sworn as such, it would not have rendered,the provision for their benefit in the will void.” The decision in the above case seems to be in accord with the laws óf England, which hold that a gift is only avoided where the witness has attested the instrument under which he takes. In the instant case the petitioner was a subscribing witness to the will under which she took .nothing. She was not a subscribing witness to the codicil, which made a gift of $3,000 to her.
I am of the opinion that the bequest of $3,000 to Emma A. Alverson under the codicil of the will of this decedent is a valid gift and that it is not voided because of the fact that she was one of the subscribing witnesses to the will itself. The cases cited are sufficient, • in my opinion, to sustain this view.
. The prayer of the petition is granted and an order may be entered requiring the executors to account in twenty days and, in their accounting, to include this petitioner as a legatee and, therefore, a necessary party thereto.
• Settle order on notice.