3 N.Y.S. 131 | N.Y. Sur. Ct. | 1888
The testatrix in this case was of sufficient mental capacity at the time of the execution of the will propounded; she was under no restraint, and the statutory formalities were well complied with in the execution of the will. The point of the controversy is this: After the testatrix had signed the will, fully understanding all of its contents and expressing her assent thereto, in fact after the will had been fully made and executed, the testatrix stated to the scrivener that her household furniture, clothing and bedding, she wished to bequeath to Jane Myers, except a bureau which she was to give to Edward Stevens. The draftsman accordingly wrote these directions on a separate piece of paper, read what he had written to testatrix, and stated to her he would paste that in the will when he reached home. It was produced upon the trial with this interpolated clause pasted upon the paper propounded—the instrument having been cut into, so as to permit that clause to be inserted in the proper place as the seventh subdivision of the will. There was no re-publication of the will after that clause had been written; it was not in any way attached to the will at the time of the execution, nor in the presence of testatrix or the witnesses, nor was any force given to it as a testamentary provision by what there occurred.
The proponent offers the will for probate exclusive of this interjected portion.
This controversy is another illustration of the folly
The same is true in any case, however brief the time may be, intervening the completion of the will and the attempted alteration. The pivotal point in such cases must be to ascertain whether or not there was an actual complete execution of the will. If so, any subsequent conversation or conduct by the testatrix cannot vitiate it unless it is tantamount to a revocation, codicil, or destruction of the will. See Brady v. McCrosson (5 Redf., 431).
The cases of Sisters of Charity v. Kelly (67 N. Y., 415), and in re O’Neil (91 N. Y., 516) are not applicable to the case under consideration. In each of those cases, the testator failed to sign the will at the end as
Nor is there anything in the point that one of the subscribing witnesses wrote the name of the testatrix. She wrote it at the request of testatrix, and a request which was accompanied with a mention of her name in full. That is a sufficient subscription (Robins v. Coryell, 27 Barb., 556; Redf. Surr. Prac. [3d ed.], 163, 164; 44 Barb., 494).
A decree will be entered admitting said will to probate, exclusive of the inserted clause.