1 Mills Surr. 133 | N.Y. Sur. Ct. | 1899
Probate of the paper alleged to be the will of the decedent is contested on the sole ground that it was not properly executed. The testatrix was an elderly woman, apparently not on cordial terms with her relatives. The will to be considered is signed by her, is in her own handwriting, and contains an holographic attestation clause, which is subscribed by two witnesses. The alleged execution of the will took place on June 28, 1897, less than two years before the proof was offered. One of the witnesses, a Mrs. Barnes, the seamstress of decedent, was told by decedent to bring her husband to witness a “ document.” On the day named, both witnesses attended. They testify in detail as to various incidents that took place in the five minutes that they and the testatrix were alone in the latter’s apartment. The “ document,” already signed, was hurriedly produced by decedent; room was made on a crowded table; the paper was folded so that its contents could not be seen, and was placed on the table before the witnesses; and both were told to sign at a place designated by testatrix under the attestation clause. The signatures were affixed and the witnesses immediately dismissed. Although it may seriously be doubted whether the witnesses at all saw the signature of decedent to the instrument, enough evidence was presented to support the inference that they did. This being so, it was not necessary for decedent to expressly acknowledge the signature, providing that the will was duly published. Matter of Mackay, 110 N. Y. 611; Mattre of Bernsee, 141 N. Y. 389; Matter of Laudy, 148 N. Y. 403. The only question, therefore, to be considered is whether the testatrix duly communicated the testamentary nature of the paper to the witnesses. Much stress is laid on the fact that the will is holographic. I am aware that this is always a circumstance to be considered as strongly indicative of the absence of fraud or imposition, and as clearly pointing the intention of the testator, and that, consequently, in such a case, the facts of which the alleged publication con
Probate refused.
NOTE ON HOLOGRAPHIC WILLS.
Generally speaking, no attestation is required. 3 Jarman on Wills, 767.
A holographic will is an instrument entirely in' the handwriting of the testator. Rankin’s Estate, 61 Cal. 468; Wilbourn v. Shell, 59 Miss. 205; Schouler on Wills, 7.
When a will entirely in the handwriting of the testator, bequeaths property to an executor, with the request to dispose thereof as indicated in a letter written at the time of the execution of the will, and such letter is dictated by testator to executor, who transcribes same, and the testaor signs it, the will is properly admitted as a holographic will, but the letter should be excluded. Matter of Shillaber, 74 Cal. 144.
The word “witness,” followed by person’s name and address, added to a holographic codicil, does not show intention to make an attested codicil. In re Soher’s Estate, 78 Cal. 477.
A will in the testator’s own handwriting, with no signature at the end, in which testator’s name appears only at the beginning of the will, although such name is endorsed, together with the words “ My will ” on the envelope containing the will, which envelope is sealed, held not sufficient as a holographic will under the Virginia Code. Warwick v. Warwick, 6 L. R. A. 775.
A letter from a soldier in actual service may be proved as a holographic will. Bottsford v. Krake, 1 Abb. Pr. (N. S.) 112.
While holographic ■wills are not excepted from the terms of the statute requiring and prescribing the method of publication, criticism of the terms and manner of what is claimed to be a sufficient publication need not be so close or seyere as where the question as to whether the testator knew that he was executing a will depends solely upon the fact of publication; a substantial compliance with the statute is sufficient. In the Matter of Beckett, 103 N. Y. 167.
The Statute of Wills makes no exception with respect to a holographic will, in its requirements as to execution, and some substantial compliance with the formalities prescribed for its proper publication is necessary; and where an instrument, signed and attested, is offered for probate as a will, and it appears that it is in the handwriting of the testatrix, but that she
In a proceeding for the probate of a holographic will, which was subscribed by three witnesses and contained no formal attestation clause, it appeared that the testator subscribed his name to the will prior to the witnessing of the will, but not in the presence of the witnesses. Only two of the subscribing witnesses testified in the proceedings on probate and neither of these witnesses saw the testator affix his signature thereto. One of them testified that the testator stated to both of them that the instrument was his will and requested them to sign as witnesses, which they each did in his presence and in the presence of each other; such witness also swore that at the time he signed the will he saw the testator’s signature attached thereto; the third subscribing witness was not present at the time of the execution of the will by the testator and the other two witnesses. Held, that the evidence established a substantial compliance with the statute concerning the subscription, acknowledgment and publication of wills. Matter of Akers, 74 App. Div. 461.
When a will is holographic, the required evidence of publication may be somewhat relaxed, such publication must be shown, and a declaration of a testator that an instrument is his will, not made to the witnesses at the time of execution, is not the publication required by the statute. Matter of Moore, 109 App. Div. 462.
Where many circumstances attending the execution of a holographic will and a holographic codicil, both having holographic attestation clauses, indicated compliance with the Statute of Wills, the court admitted the paper to probate, although the subscribing witnesses testified, seven years after the fact, that the testator neither subscribed the papers in their presence nor acknowledged to them subscriptions, theretofore made, as subscribed by him. Matter of Carll, 38 Misc. 471.
A holographic will, lacking an attestation clause, was admitted to probate on proof that the testator stated to the first witness that he had written out a paper so that his matters could be attended to in case anything happened to him, that he had written the entire paper, and that he requested the witness to sign the same as a witness, and further that he declared to the other witness, not present with the first witness, that he had made a will, that he had written out the same and that he requested this witness to sign as subscribing witness. Matter of Palmer, 42 Misc. 469.
A holographic will held to be legally established on proof of the handwriting of testator. Davis v. Williams, 57 Miss. 843.
An incomplete holographic will, not subscribed, though containing testator’s name in body, held inadmissible. Waller v. Waller, 1 Grat. (Va.) 454.
A holographic will, with the testator’s name in the body thereof, but not subscribed, held to be well executed. Adams v. Field, 21 Vt. 256.
In Wyoming two witnesses to a holographic will are necessary. Neer v. Cowhick, 4 Wyo. 49.