49 N.Y.S. 32 | N.Y. App. Div. | 1897
Proceedings for the probate of the will were instituted before Surrogate Bright. Many witnesses were sworn on behalf of proponent and contestant, and the evidence was closed and the case submitted to him for final decision; but before any decision was rendered the surrogate died. The matter was then brought before his successor, who ruled that he was empowered to take up the proceedings where they were left by the deceased surrogate, and gave both parties the right to produce additional and explanatory evidence. Contestant objected to the reception of the evidence previously taken, and demanded that the witnesses be recalled and their testimony taken; and to the refusal of the court to so order, an exception was taken. Thereupon the contestant, saving her exception, recalled one of proponent’s witnesses for examination, and the latter recalled another witness.
Upon a review of the whole evidence, as taken down by the stenographer and filed as a record of the court, the court based its decision and decree admitting the will to probate. Upon the exception so taken, as aforesaid, the appellant demands a reversal of the decree.
The ruling of the court was founded upon subdivision 8 of section 2481 of the Code of Civil Procedure, Avhich is embraced in an article entitled “ Jurisdiction of the Court and Authority of the Surrogate.” That section provides that “ a surrogate in court or out of court, as the case requires, has power: * * * 8. Subject to the provisions of law, relating to the disqualification of a judge in
“ 9. To complete and certify and sign in his own name, adding to his signature the date of so doing, all records or papers left uncompleted or unsigned by any of his predecessors.”
In Throop’s note to section 2481 it is stated that “ subd. 8 consists of 2 R. S. 223, part 3, ch. 2, tit. 1, § 11 * * * amended by the addition of the first and last clauses. It was held in Reeve v. Crosby, 3 Redf. 74 (1877), that this provision (section 11) authorizes the surrogate to take up a trial where his predecessor left it off, and to complete it and pronounce his decision upon the testimony taken before both. But see McNaughton v. Chave, 5 Abb. N. C. 225.”
The provision of section 11 was embraced in an article entitled “ Of Surrogates’ Courts,” prescribing the jurisdiction of the court and declaring the powers and duties of the surrogate.
“§ 11. Upon the office of any surrogate becoming vacant, his successor shall have power and authority to complete any business that may have been begun, or that was pending before such surrogate.”
Under this provision, the surrogate of Kings county held that he was empowered to take up the probate of a will at the point where it was left by his predecessor, complete the proofs and then decide the question at issue upon the whole evidence, including that which was taken before his predecessor. (Matter of Martinhoff, 4 Redf. 286, following 3 id. 74, supra.) The case of McNaughton v. Chave (supra) is to the same effect.
In Matter of McCue (17 Wkly. Dig. 501) the surrogate filed an opinion expressive of his views, but in no other manner made any findings of fact or conclusions of law. His successor proceeded upon that opinion and made formal findings of fact and a decree accordingly. Daniel, J., in delivering the opinion of the court, expressed a doubt whether the findings and decree “ made under the circumstances stated,” legally admitted the will to probate, but the decision of the court, reversing the decree, was based upon other grounds. It does not appear whether the surrogate proceeded to coirqffete the unfinished business by giving notice to the contestants, or any opportunity to introduce further proof, or that he ever reviewed the evidence taken; on the contrary, the inference from the statement in the report is that the surrogate merely pro
The correctness of the decison of the surrogate of New York, made twenty years ago (8 Redf. 74), has never been questioned by any court so far as the reports disclose, and we may assume that it has been accepted and frequently followed by the surrogates throughout the State as sound doctrine. Whatever doubts may now be entertained in respect to the soundness of that decision at the time it was rendered is a matter of no consequence, for we believe it was the evident purpose of the revisers of the Code to remove all doubt and uncertainty by an express provision that the surrogate, in court or out of court, shall have and possess the jurisdiction or power to complete the proofs, accounts and examinations in any business or proceeding pending before his predecessor in office, and left unfinished.
The court, in the case referred to, implied or inferred the power of the surrogate from the general provision of section 11 of the Revised Statutes. As that decision was before the revisers when they formulated section 2481, it is utterly inconceivable that they undertook to abrogate or impair the rule of law there enunciated by conferring in express terms the power to' complete the proofs and examinations. On the contrary, the effect of such amendment was to strengthen and fortify the decision and to authorize the completion of the proofs in contested proceedings as well as in proceedings uncontested. The Constitution (Art. 6, § 8) contemplates that the judge who has to decide a controverted question of- fact should have the advantage of seeing the witnesses and hearing them give their testimony; and it is a just requirement, one which a sense of propriety commends, that the evidence in a cause, when practicable, be given in the presence of those who are to adjudicate thereon. (Draper v. Day, 11 How. Pr. 441.) Still, it is competent for the Legislature to provide that, in view of particular circumstances or contingencies, the presence of a witness or witnesses before the court or judge taking cognizance should be dispensed with; and that is what the Legislature has, in effect, prescribed for the special case before us.
In the Court of Chancery the witnesses were usually examined
If the vice-chancellor deemed it expedient that the witnesses should be examined in his presence, he would so order. Where a cause was at issue and in readiness for hearing, or it was desirable to take testimony against all the defendants, if the party wished to have the testimony taken in open court at the hearing of the cause, he was obliged to apply for an order; but such an order would not be granted without sufficient cause being shown, making it necessary or expedient to have the witnesses examined in open court, instead of being examined in the usual manner. Under that system of procedure the majority of causes were brought to a hearing and a determination solely upon the depositions returned.
The Code provides for the appointment of a stenographer by the surrogate of each county ; and he is required to take full stenographic notes of all proceedings in which oral proofs are given, and the testimony must be written out at full length from the notes and the minutes thereof; and after being properly authenticated, must be filed among the records of the court (§§ 2513, 2541, 2542.)
And the surrogate is required to file and preserve every deposition, petition and report, and to deliver to his successor all books and papers. (§ 2500.)
A provision is made for the examination of aged and infirm witnesses residing in another county by the surrogate of said county, or by a referee. (§§ 2539, 2540.) Upon the depositions so taken and returned, together with such other proof as may have been adduced before him, the surrogate proceeds to determine the matters in controversy.
In view of these directions we are unable to perceive anything in the nature or circumstances of the case that compels or requires the court to limit the effect and operation of the clause “ including proofs, accounts and examinations ” to uncontested matters or proceedings, or to insert words to that effect by way of judicial construction or amendment, or to draw a definition where the Legislature has made
We, therefore, conclude that the intent of the statute conferred upon this surrogate the ¡rower to act as he ruled he had the authority to act, and that such ruling presents no error.
Such conclusion, therefore, brings us to the consideration of the question whether the findings of the surrogate are justified by the evidence in the case.
April 18, 1890, James A. Carey died. Susan E. Hadcox and Mary R. Cody are sisters, and the only children of the deceased. The will in question was shortly after his decease found among his papers by his daughters. The will is dated May 8, 1889, and by it he gave to his daughters the use of all his property during their lives (the appellant, however, to have the use of $2,000 more than the respondent), the property then to go to his legal descendants. He also appointed both daughters executors of the will and required them to give bonds for the faithful performance of their duties as such executors. On April 26, 1890, eight days after Mr. Carey’s decease, the appellant and respondent each verified a petition, directed to the proper surrogate, to have the -will admitted to probate ; and on the same day each of them took and subscribed the usual oath as executor of said will. Joseph S. Avery had been retained to represent them as their attorney in the proceedings before the surrogate. The petition was duly filed with the surrogate on May 5, 1890. Citations were issued, returnable May 12, 1890. On the return day, on the application of Mr. Avery, attorney for the petitioners, a commission, with interrogatories annexed, was duly issued to a commissioner therein appointed, to take the examination of W. Byron Topping, one of the subscribing witnesses, who then resided in Washington, District of Columbia. The examination was duly had, the commission duly executed and returned to the court and filed therein May 19, 1890. On that day upon application of Mr. Avery, who was still acting for both petitioners, the matter was set down for hearing for May 26.
The will, including the attestation clause, was, on the day it bears date, prepared by James A. Oarey. It was executed on the same day. At that time testator was sixty-five years of age. He was shown to have had experience in drafting conveyances, contracts and legal documents of a like nature; he was careful and accurate in his own business and in transacting the business of others intrusted to his care. It is in evidence that, previous to preparing the will in question, he had drafted and attended to the execution of at least five other wills, and the evidence tends to show that he was familiar with the statutory requirements for the due execution of such an instrument, and that he observed a compliance with these requirements. He at least had sufficient confidence in his own experience in, and knowledge of, the preparation of legal documents to himself prepare this instrument disposing of more than §20,000 of property, being all the accumulations of a long and busy life. On the morning of the day on which the will bears date he went to the store of George B. Hortlirup, in the village where testator resided, and in the office of the store prepared the will. It is fully established that, while he was preparing the will, W. Byron Topping, who was then a clerk in the store, was present in the office; that, when he had fully prepared
The witness Rorthrup testified that the testator handed the paper to him, but that he did not say it was his will; that the testator did not sign the will in his presence, and that he did not see the testator sign the same; Rorthrup says, “he saw me sign; I understood it was the will of Carey * * * because Mr. Topping told me so; he told me so when I was signing the paper. Mr. Carey was present.” Rorthrup testified that after the will had been handed to him, “I remember speaking to Mr. Topping in the office and in the presence of Mr. Carey ; I asked him how many sheets of paper there was;' there was but one sheet of paper; I can’t remember exactly what I said, but I spoke about there being only but one sheet of paper.” Witness further testified:
The witness Horthrup, it appears, is an active business man and has been for many years. He testified : “ I am engaged in the mercantile business, keeping a general store at Deansville; I am also a farmer, own four or five farms, I can’t tell without figuring up; am the manufacturer of vinegar and cider in a company; a grist mill, and I sell hop poles and shingles and lots of things outside of any firms; am a general dealer in whatever I think I can make anything on; have been an agent of a western loan company, and have sold some of those western mortgages. My wife had an interest in the estate of her father, and I looked after her interest. I was not executor or administrator. It was the same as to my mother-in-law’s estate. I think I have been a notary eight years; as notary I have taken acknowledgments of papers, any paper that was presented to me, pension paper’s, mortgages, assignments, deeds; I have written mortgages, deeds and assignments for other people and superintended
There is no question as to the intention of testator. The will is in his own handwriting and speaks for itself. His acts and conversation at that time indicate an active desire upon his part to have that instrument properly and legally executed. This is shown most
In The Matter of Cottrell (95 N. Y. 339) it in said: “ It was always considered to afford a strong presumption of compliance with the requirements of the statute in relation to the execution of wills that they had been conducted under the supervision of experienced persons, familiar, not only with the forms required by the law, but also with the importance of a strict adherence thereto. * * * The presumptions arising from the certificate of the subscribing witnesses and the supervision of an experienced person that the requisite formalities were complied with, are fortified by the acts and conduct of the testator. * * * He had * * * ample time and opportunity to supply any defects in its execution, if any existed.” “ The testator had not only once correctly gone through the ceremony of executing a will, but, by d/r awing the attestation clause in question, he had at the time necessarily brought before his mind each one of the conditions imposed by the statute as necessary to its valid execution.”
Again, in the Cottrell case (at p. 340) are words so appropriate to this case that they would seem to have been prompted by facts precisely like those in the case under review : “ Ho controversy can arise in this case over any question as to the real intention of the testator in the disposition made by this will of his property, for not only were his wishes deliberately formed, but they are recorded in his own handwriting, which implies care and deliberation on his part in framing its provisions and directions. It is the duty of the court to carry into effect a testator’s intentions when they can be discovered, provided they do not contravene any provision of law.”
It is too late to claim that the facts making due execution must all, or any of them, be established by the concurring testimony of the two subscribing witnesses; both of these witnesses must be examined, but the will may be established even in direct opposition to the testimony of both of them.
It is very clear to me that there was a compliance with every requirement of the statute necessary to be observed in the execution
In Lane v. Lane (95 N. Y. 501) the language is peculiarly applicable to the case at bar. “The testator knew, and the witnesses understood from his acts and conduct, as he intended they should, that the instrument then executed was his will. The statute upon this point exacts nothing more.”
Again, in Matter of Pepoon (91 N. Y. 255) the court held: “ Where the attestation clause to a will is full and complete it is not always essential that all of the particulars required by the statute to constitute a valid execution of the instrument should be expressly proved.”
The Surrogate’s Court found as a fact that this will was duly subscribed by the testator, and that the same was.duly declared and published by him to each of the witnesses as his last will and testament in the manner provided by statute. We are of the opinion that such finding is fully substantiated by the evidence, and that the exceptions present no error justifying a reversal of the decree, but that it should be affirmed, with costs against the appellant, Susan E. Hadcox, personally.
All concurred.
Decree of the Surrogate’s Court affirmed, with costs against the appellant, Susan E. Hadcox, personally.