182 Misc. 274 | N.Y. Sur. Ct. | 1943
On August 31,1942, Joseph Schoengold, accompanied by a friend, went to his lawyer’s office in the borough of Manhattan and then and there executed his will, previously prepared for him, in the presence of his lawyer and two other witnesses. After execution the lawyer delivered the will in good condition to the testator who took the same and his wife’s unsigned will away with him. There is evidence that upon his return home testator handed both instruments to his wife who put them in her pocketbook. His will when presented for probate by his widow, who is the sole executrix, legatee and devisee named therein, was torn in six pieces. Two pieces have not been produced. The testator died October 25, 1942, survived by his widow and three adult children. A son and a daughter have consented to probate. Another daughter objects and claims that the propounded instrument was not properly executed and that it was duly revoked by the testator in his lifetime. The sole
The testimony discloses that the testator had been suffering from a heart ailment for several years and that he was apprehensive of an early demise at or about the time he executed his will. His wife was in constant attendance upon him. Their relations were affectionate and harmonious. The draftsman testified that although he had-prepared a prior instrument which made provision for testator’s children, testator never executed the same, that testator came to him in July, 1942, and told him that as a result of a talk with his wife they had reached an understanding whereby he would leave his estate to her and she in turn would leave everything to him, but if he .predeceased her she would dispose of her estate equally to their three children. Her will received in evidence reflected this understanding. It appears that on September 3, 1942, testator’s wife went to a local bank and there executed her will in the presence of two witnesses, and after -she returned home there was a conversation on the porch between her and her husband, in the presence of their daughter who lived with them and her husband in the same apartment, relative to the necessity or desirability of having a third witness- to' her will. In connection with this incident the daughter, who has consented to probate, testified that her mother, after getting a Mrs. Wolf to so act, opened her handbag and upon noticing that she gave the intended witness the testator’s signed will said, “ Oh I made a mistake, I am sorry, that is my husband’s will. * * * All I want you to do is to sign my will ”. That Mrs. Wolf thereupon signed her mother’s will. There was testimony given by the widow that on October 19, 1942, when the testator suffered a severe heart attack at a doctor’s office in Manhattan, she opened her pocketbook to look for smelling salts, which she carried for emergency use, and observed that both wills were then in there. The next incident concerned with the condition of the propounded instrument took place about three or four days after the testator’s death and during the mourning period. The son, testifying with relation thereto, said that his mother called him into the parental bedroom and she told him that there was “ a number of papers that she wanted to go through ”. These papers were in a worn inexpensive black pressed cardboard valise which was kept in the bottom drawer of a chifforobe in the bedroom. Insurance policies and school records belonging to the witness, together
The burden of establishing a revocation of the instrument was upon the contestant. If the will had remained in the custody of the testator or the proof established that after its execution he had access to it, the objector would, in the light of its torn condition, be entitled to the benefit of the presumption that he had revoked it animo revocandi. (Matter of Hopkins, 172 N. Y. 360; Matter of Frazell, 174 Misc. 142; Matter of Ten Eyck, 155 Misc. 443.) But here the proof is that it passed into the custody of the proponent after he brought it home from his lawyer’s office. The objector has failed to retrace it to his possession. With respect to the time and manner of its injury I accept as true the version given by the proponent and her witnesses. In the light of the provisions of the will it is unreasonable to assume that the widow would destroy or attempt to destroy it in the lifetime of the testator. Mutilation after death impresses me as a more reasonable conclusion. I am satisfied, upon the evidence, that the instrument was torn at the time testified to by her and her son and that the pieces, now produced, were later found in the box as related by her and the other witnesses who went into her bedroom on the evening aforemen