18 N.Y.S. 923 | N.Y. Sup. Ct. | 1892
This action is brought for the partition and sale of certain real property situated in the city of Hew York. The complaint alleges that an apparent devisé made by one Maria Anna Lehritter is void, and that said Maria died intestate as to said realty, and that it descended to her heirs at law and their grantees, the plaintiff and the defendants. The defendants respondents make substantially the same claim. The-defendant appellant, Charles Lehritter, claims that certain paper writings constitute a valid will of the said real property, and that they contained a valid devise thereof to him, and he seeks to establish such paper writings as a valid will of real property. The issue was referred to Hamilton Odell, who reported in favor of the plaintiff, and the defendants respondents, and against the defendant appellant, Charles Lehritter, sustaining the material allegations of the complaint, and refusing to establish the writings as a will of real property. An interlocutory judgment was entered pursuant to such report; and this is a motion for a new trial on the case and exceptions, and an appeal from said interlocutory judgment taken by the defendant Charles Lehritter.
The opinion rendered by the referee was as follows:
“This action is brought for the partition of certain real estate known as ‘Hos. 307 and 309 West Thirty-Eighth Street,’ in the city of Hew York, which was owned by Maria Anna Lehritter at the time of her death, on the 25th of January, 1890. The plaintiff alleges that as to such real estate the said Maria Anna Lehritter died intestate, and she claims title to an undivided one-third interest therein as grantee of certain next of kin and heirs at law of the said deceased. The defendant Charles Lehritter denies the allegation of intestacy, and claims the entire premises under certain writings executed by the said Maria Anna Lehritter, at Wuerzburg, in Bavaria, on the 13th of October, 1882, which it
“The said statement having been so attested, the following took place, (I quote the entire ninth section of the stipulation:)
“‘Immediately thereafter, and in the presence of all the persons before named, the said notary drew the following instrument:
“•To-day, on the thirteenth day of October, one thousand eight hundred . and eighty-two, there appeared before me, Ulrich Huth, royal Bavarian notary, with an office at Wuerzburg, in my office in this place, Mrs. Maria Anna Liehritter, born Boetzel, known to me with respect to her name, position, and residence, and requested me to receive upon deposit her last will. After I
“•In testimony thereof, Maria Anna Lehritter.
“‘Joh. Georg Gutbrod.
“‘Franz Jaeger.
“ ‘ [l. s.] Huth, Royal Notary.’
“This instrument was written upon a separate piece of paper, and was never at any time attached mechanically to the said sealed envelope, but the said paper was folded in the middle, and then, in the presence of all the parties named, the said sealed envelope was, by the said Huth, placed loosely between the leaves of the folded paper, and deposited by him ‘ among his official documents in a place in the office of the said notary kept for that purpose», where all the said papers remained undisturbed until after the death of the-testatrix.’ After her death the said notary deposited a certified copy of the said instrument, together with the said sealed envelope containing the paper writing first above mentioned, with the royal district court number 1, in Wuerzburg, but the instrument itself he retained in his own possession.
“It is admitted that tire several acts above recited as having been performed on the 13th of October were pursuant to and in compliance with the provisions of Bavarian law, and that a valid will for the passing of title to real estate situated in Bavaria was thereby made. This fact, however, is not important, except as an explanation of the rather novel proceedings of the royal notary; for it is a settled rule that, to make a valid disposition of immovable property by deed or by a last will and testament, the lex loci rel sitce must govern, and the instrument must be executed in conformity to that law. Moultrie v. Hunt, 23 N. Y. 410; White v. Howard, 46 N. Y. 159. The-formalities required in the execution of a will are prescribed by the statute, and they must be substantially complied with, or the instrument has no validity. Lewis v. Lewis, 11 N. Y. 220. There must be a subscription by the-testator at the end of the will, made in the presence of two attesting witnesses, or acknowledged by him to each of the witnesses to have been so made; a declaration by him at the time of the subscription or the acknowledgment that the instrument subscribed by him is his last will and testament; and the witnesses must sign as such at the end of the will at his request. There is-
“The learned counsel for the defendant Charles Lehritter concedes the correctness of these rules, and claims that they were all observed, and that all the requirements of the statute were complied with, on the occasion of the execution of the several writings above referred to. His contention is that these several writings having been executed at the same time and in furtherance of a declared purpose, and that purpose the testamentary disposition by Mrs. Lehritter of all her estate, real and personal, wherever situated, must be taken and construed together, as constituting a single instrument; that the indorsement on the envelope and the final certificate of the notary (subscribed also by Mrs. Lehritter and the two witnesses) are to be regarded as continuations of the incomplete testamentary writing contained in the sealed envelope; that the end of the will, therefore, is the end of the notary’s certificate, where the testatrix and the witnesses set their names in the presence of each other, the witnesses signing at Mrs. Lehritter’s request, and after her ■oral declaration to them, or in their presence, that the envelope delivered by her to the notary contained her will; and that the fact that the said certificate was not attached mechanically to the envelope is of no materiality, the law not requiring the several pieces of paper on which a will may be written to be so attached. The last proposition may be accepted as true. In Ela v. Edwards, 16 Gray, 91, cited by the counsel, the court approved the rule laid down in Bond v. Seawell, 3 Burrows, 1773, and followed in other cases, ‘ where all that was required was that all the separate sheets of paper must be in the room and in the presence of the attesting witnesses.’ It is doubtful whether, within that rule, a paper inclosed in a sealed envelope can properly be said to be in the presence of the witnesses, although the envelope be produced and -exhibited to them. The point, however, is not material; for the controlling ■ question is whether the certificate which the notary prepared and sealed, and which was subscribed by all the parties, and to which Gutbrod and Jaeger affixed their signatures at Mrs. Lehritter’s request, is to be accepted as a part •of the will which she executed that day, and by which she intended and attempted to dispose of her entire estate. A careful consideration of all the facts has convinced me that question should be answered in the negative.
“Three papers or writings are mentioned in the stipulation. The first is ■the instrument in which Mrs. Lehritter directed how her estate should be disposed of and distributed. She entitled it her ‘last will.’ In it she declared, ‘ This is my free, well-considered last will, which I have myself read and :Signed in execution.’ It is the paper to which her signature was affixed in the presence of the notary only, and which she then inclosed in an envelope, which she sealed with her private seal. When she delivered the envelope to Hath, in the presence of the witnesses, she said, ‘In the envelope which I .have just handed you is contained my last will.’ By the indorsement written upon the envelope, the notary and the two witnesses certify that it contained the last will of Mrs. Lehritter, ‘according to her oral declaration.’ This .statement is repeated in the third writing,—the separate instrument which
We are of the opinion that the conclusion reached by the referee was correct, and we do not see that anything can be added to his opinion. The facts were not in dispute, and they are fully and accurately set forth in such opinion. The rules of law as to the formalities to be observed in the execution of wills of real property in this state are correctly stated, with full citations of decisions of the court of last resort supporting the samé. Such rules of law are then applied to the admitted facts, and the conclusion is reached, from which we can see no escape, that the paper writings in question do not constitute a valid will of real property situated in this state. We are of the opinion that the judgment should be affirmed upon the opinion of the referee.
All concur.