text:
    In the Matter of Proving the Last Will of William H. Green, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed March 8, 1892.)
    1. Will—Undue influence—Declarations of testator.
    While the fact of fraud or undue influence cannot be proved by the declarations, prior or subsequent, of the testator, such declarations are admissible when they denote the mental status or mental fact in issue.
    2. Same.
    A' change of testamentary intention, however, sudden, which results in giving the inheritance to the heir is not even ground for suspicion when the change follows a reconciliation after estrangement; especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.
    Probate of will.
    Two wills are presented for probate; the first of which is dated July 2, 1888, with a codicil dated July 2, 1890, in which Eugene F. Barnes and Albert 0. Barnes are named as executors, and the second is dated July 22, 1890, in which Georgianna R. Green is named as sole executrix.

      Alden, King & Speck and Henry A. Merritt, for executors of first will; Davenport & Hollister (Charles E. Patterson, of counsel), for executrix of second will.
   Lansing, S.

Robert Green, father of testator, a prominent-business man and an old resident of the city of Troy, died in 1816, leaving a widow and two children. He was twice married. By his first wife he had a son, the testator. The only-surviving child of the second marriage was a daughter, Georgianna R. Green, bom some ten years after her brother. He was about forty-eight years old at time of his death.

The property which William H. Green owned at the time of his death was derived principally from his father. It consisted of one-lialf interest in two brick stores in Troy and a three-story brick building in Brooklyn, and certain stocks and bonds and a collection of pictures, coins and books, all of the value of about $40,000.

After the death of Robert Green his widow and his two children continued to live together. Mrs. Green became an invalid, and after being confined to the house for several years and to her bed for months, died in November, 1888. Neither William H. nor his sister ever married.

William II. Green continued to reside at Troy until his death, which occurred August 11, 1890, at Patchogue, where he was temporarily sojourning.

Among his relatives, besides his sister, testator had three cousins residing at Troy, children of Mrs. Kate Green and William H. Green (his father’s brother), viz., Misses Mamie, Sarah and Emma Green, and six second cousins in Brooklyn, children of a cousin of his father, viz., Eugene F. and Albert O. Barnes, and their four sisters, _Misses Emma and Angie Barnes, Mrs. Robbins and Mrs. Wykoff, who are the beneficiaries under the will of July 2, 1888. He had also four cousins, the children of his mother’s brother, residing at Peeks-kill, N. Y., who, with his sister, were the beneficiaries under the last will of July 22, 1890.

The testator was an invalid, for some time prior to his death. He was suffering from Bright’s disease and an irregular action of the heart. This heart trouble had been chronic for years and made him an invalid, subject to frequent attacks, which prostrated him for days and weeks at a time. He was undersized and quite deformed.

After the death of his stepmother, William H. Green continued to life with his sister until May 1, 1889, when he took apartments on Third street, in the city of Troy. On the 1st of May, 1890, he went to the house of his aunt, Mrs. Kate Green, Ho. 5 Union place, where his cousins, the Misses Mamie, Emma and Sarah, resided with their mother. He remained there until June 15, 1890, when he went to Brooklyn to visit the Barnes, where he remained until July 9, 1890, when he went to Brighton Beach, Coney Island, in special charge of a nurse, one Peter Fitzharris. He was at that time quite ill. The Barnes visited him there until July 13, 1890. At that time his sister, Georgianna R., in response to his invitation, arrived. On the 22nd day of July, 1890, the will presented by her for probate was drawn by William H. Hollister, Jr., of Troy, her lawyer, but a mutual acquaintance and one who had transacted business for both on a previous occasion. July 24, William H. Green and his sister, accompanied by the nurse, left Brighton Beach and went to Patchogue, a place forty or fifty miles distant, at which place he died August 11, 1890.

By the will of July 2, 1888, presented by Eugene F. and Albert O. Barnes, the testator devised the Troy property to Miss Mamie Green, the Brooklyn dwelling to Miss Emma Barnes for life, the remainder to her sister, Miss Angie Barnes. By this ■will also he gave to his half sister, Georgianna R. Green, a legacy of $62.50, and named the Misses Emma and Angie Barnes, Emma and Sarah Green as residuary legatees.

By the codicil to his will, executed-July 2, 1890, he gave a legacy of $200 to Mrs. Wykoff, formerly Miss Barnes, revoked a legacy to a cousin on his mother’s side, and gave a legacy in lieu thereof to her sister. He also gave directions as to his own funeral and interment.

By the instrument offered, for probate as the will of testator, ■dated July 22, 1890, he gave, with the exception of $500 each to four cousins, daughters of John Hyatt, Ms entire property to his sister, Georgianna R. Green.

The application for the proof of these several wills was consolidated and the matters heard together. The proponent of the later will contested the probate of the first will upon the ground that the testator by his will of July 22 had revoked the former will. The proponents of the first will contested the probate of the last will upon the ground that the last will was not the will of testator, but was obtained by fraud, duress or undue influence of his sister, Georgianna R. Green, the proponent and principal beneficiary.

The sole question to be decided upon this hearing is, was this will of July 22 obtained by fraud, duress and undue influence?

Upon this question tire burden of proof is ordinarily upon the party who makes the allegation. Tyler v. Gardiner, 35 N. Y. 559; Baldwin v. Parker, 99 Mass. 79, 85; In Matter Will of Martin, 98 N. Y. 196.

The general rule is that the influence that will avoid a will as undue must amount to moral coercion, restraining independent action and destroying free agency; or the importunity must be such as to constrain the testator to do that which is against Ms desire. 'The undue influence which deprives a testator of the free exercise of Ms will must be exercised in respect to the very act. It is not sufficient for the purpose of establishing undue influence to show that the will is the result of affection and gratitude, or the persuasion which a friend or relative may legitimately use. Courts will hesitate to find that undue influence has been practiced, when the will is fair and reasonable, according to common instincts of mankind, and is such as might with propriety and justice have been made by the decedent. In the absence of evidence of force, threats or coercion, the exercise of an influence springing from family relations or from motives of duty, affection and gratitude cannot be regarded as undue.

But the proof of undue influence need not be direct; it may be shown by circumstantial evidence, such as sinister conduct attending the execution of the will, mental weakness of the testator, want of harmony of the will with the testator’s general intentions, to which may be added interest and opportunity, although the last two are not alone sufficient. Coit v. Patchen, 77 N. Y. 539; Children’s Aid Society v. Loveridge, 70 id. 394; 1 Jarman on Wills, 36; Tyler v. Gardiner, supra.

And it is further held, as a rule of evidence, when a later will is sought to be established to overthrow a prior one, tire earlier will being made when the testator was in health and under circumstances of deliberation, and the latter when he was in feeble health and exposed to undue influence, and its provisions hostile to the provisions of the former, the prior will must prevail unless the later will is so-proven as to satisfy the judgment and conscience of the- court, that it speaks the deliberate intention of the testator. This, however, is subject to' the general rule as to burden of proof when fraud and undue influence is the sole and distinct issue in the case. Tyler v. Gardiner, supra; Phipps v. Van Kleeck, 22 Hun, 541, 546; Baldwin v. Parker, supra.

In ordinary cases the formal execution of the will by a person who can read and write imports a knowledge of its contents. But in a case where a will is prepared or procured by one interested in its provisions, the proponent must go farther, and not only show soundness of mind, but actual knowledge by the testator of the contents of the will, and that he was at that time under no undue or improper restraint of volition. But where it appears that the testator was of sound mind and clearly understood the provisions and contents of the will and appeared to be at that time under no undue influence, the burden which the law casts upon the contestant who alleges fraud and undue influence, returns and remains with him to establish his defense. Baldwin v. Parker, supra; Tyler v. Gardiner, supra; Boyse v. Rossborough, 6 H. L. Cases, 46.

In the last case Lord Cransworth says: “Where it has once been proved that a will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges the undue influence; undue influence cannot be presumed.”

In the case of the last will, which was drawn by Mr. Hollister, the formal execution of the will was not only satisfactorily proven, but it appeared that the testator dictated the will, paragraph by paragraph, to the draughtsman in the absence of his sister; and when the will was executed, in the presence of three witnesses, including Mr. Hollister, it was read to him, and he also read the will himself in their presence, and after reading it said it was right, signed it, declared it to be his last will and testament, and requested the witnesses who were present to sign it as such. Although he was at that time sick, yet his health was considerably improved, so much so that he sat up during a portion of the time in a chair, and within two or three days thereafter traveled a distance of forty or fifty miles on the cars to Patchogue, retaining sufficient strength after his arrival there to spend the next day but one after his arrival, and several days thereafter, upon the hotel piazza, walking about unassisted, conversing freely with those whom he chanced to meet.

But the proponents of the earlier will insist that, notwithstanding the due and formal execution of the later will, and the testator’s undisputed knowledge of its contents, that the later instrument was the result of the dominating will and undue influence exercised by his sister, not in making the will, bub in causing the testator to make the instrument; and they insist that the will of -Tuly 9, 1888, which was made when the testator was in comparative health, residing with his sister, which was republished by the codicil of July 2, 1890, was the result of a deliberate intent upon the part of the testator to deprive his sister of his property and to give- the same to his cousins, the Greens of Troy and the Barnes of Brooklyn, and that such disposition wras not only expressed in his will, but had been expressed in a prior will made May 1, 1888, and that the evidence tends to show a still earlier will, made within a year, perhaps, prior to that time, all containing the same provisions substantially in regard to the disposition of his property, in neither of which wills did his sister have any substantial provision in her favor.

It is further insisted that the declarations and conduct of the ■deceased, embracing a period of three or four years prior to his death, are in strict accord with the intention as expressed in said will and codicil.

In support of this contention, evidence was produced tending to show that the testator complained of petty annoyances which Ee had been subjected to at his home, when residing with his •sister; that he stated he was unkindly treated; that he left the house because of such treatment, and although his outward relations with his sister wore polite and friendly, yet at heart he disliked her, and deliberately resolved that she should not enjoy any of his property.

In further support of this contention, it is insisted that whilst testator disliked his sister, he was, on the other hand, sincerely attached to his cousins, the Misses Green, and especially Miss .Mamie Green, his principal beneficiary under the will, and the Barnes of Brooklyn, with whom he spent a great deal of time, and of whom he frequently spoke to his intimate friends. That these relations between these respective parties, as manifested in the earlier will, continued down until the arrival of his sister at Coney Island on the 13th of July, 1890. It ap>pears he had been quite sick at Troy from about the 1st of May, 1890, when he left his boarding place on Third street and went to his aunt’s, Mrs. Kate Green, Eo. 5 Union place, where he remained about six weeks. It appears his sister learned of his illness and wrote him a letter of sympathy, dated June 5, 1890, inviting him to her home, proffering to send for him and nurse him, to which he replied the same day kindly, thanking her for her proffer, and said he had been very sick, but was better, and that he would come over and see hea* as soon as he could. It does not appear that he called, though he apologizes for it in a subsequent letter which he wrote to his sister from Brighton Beach.

The proponents of the earlier will insist that his testamentary intention in regard to the disposition of his property remained, as appears in his will and codicil, without change, until his sister took charge of him on the 13th day of July; that she thereafter discharged his former physician, excluded the Barnes, who were visiting him from day to day, and continued such exclusion until the day of his death, took possession of his person, dominated his will, sent for her own lawyer, had a will drawn in her favor and then removed him secretly to another place where knowledge of his whereabouts was not known and would not be likely to bo ascertained by the beneficiaries under his former will, and they invoke the rule that as the former will was executed when the testator was in health and the circumstances tended to show that it was made with deliberation, and the later will made in ill health when in charge of the principal beneficiary, with interest and with every opportunity impelling her to procure a will in her favor, that the clearest and most satisfactory evidence should be given that this extraordinary revolution in the testamentary intention of the testator was brought about by such fair and reasonable means as the law justifies and allows, and that the later instrument was the free act and will of the testator.

We are inclined to hold that this rule must obtain in this case, notwithstanding the general rule that the burden of proof is with the "contestants to prove their defense, of fraud and undue influence.

• The period of time when the change occurred is exceedingly brief, not to exceed eight days. The question then comes to this: Does the evidence in this case furnish satisfactory proof that this complete change, which was wwought in so brief a period under the circumstances disclosed by the evidence in this case, was the unbiased, uninfluenced act of the testator’s own mind and will ?

The proponent of the later will insists that, the proof is satisfactory and complete that the later instrument reflected the mind of the testator at the time of its execution, and in support of her contention claims the will is a natural one, made in accordanee with the common instincts of mankind, that it sprang from motives of duty, affection and gratitude, that it was such as might with propriety and justice have been made by the decedent; and, moreover, insists that the testimony, which covers much of the past history of the lives of the testator and his sister, shows that they lived together in one family for many years Avithont bickering or discord, bound together by the ties of love and affection, and that whatever there was that interfered with those relations arose not to exceed three or four years before his death. A cloud of Avitnesses Avere produced, family friends and acquaintances, some calling frequently, some visiting and remaining weeks and months together; others, seamstresses and domestics, employed in the house, off and on, for years, who not only testified to friendly and pleasant relationship between the brother and sister, but even at times to marked exhibitions of affection and regard. This testimony is corroborated very greatly by .a great body of letters, numbering some 300, extending over a period of ten years, Avhich evince, at least during the earlier period, not only that the testator was satisfied Avith his home, hut gladly returned there when away. In 1883 he Avrites his sister, she being at that time away with her mother, “I don’t know where I shall stop in Troy, anyhow, I shall he awful lonesome in a boarding house.” And again, within a day or two, “I wish things Avere so fixed that you would come home and open the house. .You may think I am in a hurry, hut I am tired of going about from pillar to post;” and a day or two later Avrites, “I am stopping at Ho. 3 Ida terrace, and may malee a change[Ida terrace Avas the home of Mrs. Kate Green and her daughters.] ‘‘I icould like to change over to 12 Fifth street[At that time the residence of his sister.]

I think it is settled by the great weight of evidence that the testator was satisfied with his home and surroundings, and that affection for his sister dominated his heart at that time and did for some time after. July 2, 1888, the testator prepared an instrument with his oavu hand, in which he stated, after bequeathing the btidy of his estate to his cousins and second cousins, the Greens and Barnes, “To my sister, Georgianna R. Green, I give and bequeath the sum of sixty-two dollars and fifty cents, hoping that she may make good use of it.” It appears that he had made a former will on the 1st of May, 1888, a copy of which was found among his papers in his own writing, which contained the same provisions in regard to the disposition of his property to his collateral relatives as tire subsequent will of July 2nd, and also contained the following provision: “Unto my sister, Georgianna R. Green, I bequeath the $62.50 that she owes me, hoping that she will make good Use of it.” Both of the wills contain the following clause: “I desire the sum of $1,000 to be set apart to meet legal expenses in case there is any contest to break this my last will and testament, and if any one of the heirs shall contest this my last "will and testament, then their bequest shall lapse and be void.”

There appears no reason to doubt that these wills expressed the intention of William II. Green at the time they were made. It is manifest that the will of July 2, 1888, like the earlier one, of which it was a copy, and perhaps an earlier one still, was based upon deep resentment; somehow, under some circumstances, which the evidence does not explain, the testator felt, whether justly or unjustly, that he had been injured, and its recollection sank deep into his heart, and this will was the undoubted offspring of resentment for an injury, real or imaginary. That it was deep, appears from the fact that time had not softened his feelings towards his sister, although he was courteous and friendly in his external deportment. The will was prepared while living with his sister and before the death of her mother. The resentment had survived an illness in which his sister faithfully and carefully attended him in Hew York in December, 1889, and undoubtedly continued down to July 2, 1890, for he then republished the will by his codicil of that date. His associations with the Greens and Barnes subsequent to the making of the wills and his withdrawal from the home of his sister in May, 1889, and his not very frequent visits there thereafter, added to the jealousy and bickering which existed between the different families (Miss Georgianna R. Green on one side and the Greens and Barnes on the other), was not calculated to induce him to change his testamentary intention.

This brings us now to the important question in the case: the change of testamentary intent. That the earlier will was based upon resentment is manifest in the very instrument itself. It is-claimed that the resentment or its cause needed but to be removed, when the old love and affection which once reigned in his heart for his sister would return, and then, in accordance with tire common instincts of humanity, his sister, his only heir-at-law and next of kin (upon whom the law would cast the inheritance without a will) being the natural object of his bounty, would naturally become his principal beneficiary! It is claimed the evidence shows that this very result took place and that the last will was the result, not of fraud or undue influence, but of returned love and affection for the natural object of his. bounty.

In support of this contention it is urged that the evidence-shows that he was a man of decided opinions, of strong will and not likely to be influenced to do- anything which his heart and judgment did not approve, and the evidence greatly pre^ponderates from those who knew him best, including such witnesses as David M. Green, who was the executor of his father’s; will, General Joseph B. Can, his wife and many others, who-had known him long and well, neighbors and intimate friends, that he was a person of strong will. The evidence shows beyond all question that he dictated the later will, read it carefully and executed it after an expressed approval of its contents.

But in this case some proof is required in addition, considering the ill-health and weakness of the testator, his peculiar sursoundings, his absence from those with whom he had for years associated as friends, and his previously decided expression of his testamentary intention, to show that all resentment had been buried and forgotten and that an entire reconciliation had taken place between this brother and sister and that they were upon. théir former footing, when, as he stated, he would he glad to change "from No. 3 Ida terrace” (the home of' Mrs. Kate Green and her daughters) " to 72 Fifth street” (his sister's home).

We find him sick in Brooklyn at the Barnes’ with a nurse employed. The doctor recommends a change to Brighton Beach, Coney Island. He goes there, accompanied hy the nurse. He is sick unto death with his heart trouble, sits up all night at the window on his knees, panting for breath. The B armes visit him every day or two, make quite protracted stays, and the testimony tends to show upon one occasion indulged in. contentions in his presence which worried and wearied him. On the 11th of July he writes a pathetic letter to his sister,, telling her that he was very ill, and adding: “If you go west by way of Hew York, it would be nice for yon to come on here for a day. I "was sorry I could not see you before I left Troy, but it wasn’t possible. If you come on, I am in room 210. If you wait until fall I may not be able to see you at all, as unless a change takes place soon for tire better I shall have passed to the great majority.”

. His sister immediatly came down, and if we may believe the testimony of Mr. Eitzharris, the nurse, she was received with every manifestation of joy and affection. What took place from this time on until his death between this brother and sister is an important matter to be determined. What explanations-followed their meeting, how the differences were settled and adjusted, does not appear, and it is not necessary that it should, if they were settled and adjusted. Eitzharris’ testimony tends to show a perfect reconciliation between the parties. He testifies that the testator requested her to stay and take charge of him, and told her that he wished to go and live with her again if he got better, and she told him he would be welcome, that he could have his room on the second floor right near the bathroom, where it- would be convenient for him (he had roomed on third story before) and where she could take care of him. As to dismissing the physician, Dr. Matson, who had been employed by the Barnes, Eitzharris states the doctor came to Brighton Beach only once, and that on the 11th of July, and he then stated that he could not come again, that his practice required his attention at home, but recommended Dr. Morrill, a stranger, who attended only once; that on the night after Miss Green’s arrival she telegraphed at Mr. Green’s direction to Dr. Anderton, a physician whom they both knew and who had attended him when he was sick at the Grand Union hotel in Mew York in December, 1888; that he came and took charge of the case; that Mr. Green at that time, July 13th, was very much depressed and was very ill, his feet much swollen, his heart’s action very bad and his temperature bolow normal; that Dr. Anderton gave instructions to keep all persons out of the room, and that it was in pursuance to these instructions that the Barnes, who came down on one or two occasions after that time, were excluded. The testator stated to the witness, as he testified, that he had been alienated for some years from his sister and had removed from her house; that the Barnes of Brooklyn and the Greens of Trov had tried to prejudice him against his sister; that he had tried to be a peacemaker between them always, but that they had tided to separate him from his sister,. but that he thought mo-re of his sister than he did of. them. He also testified that letters were received after their reconciliation from both the Greens and the Barnes (these were put in evidence), in which derogatory remarks were made about his sister; that after reading them the testator passed them to his sister and said: “Mover mind, Georgie, when I get well I will make it all right. I will put an end to all these insults and persecutions.” He further testified that on one occasion, shortly after her arrival, when the subject of testator’s giving her a portion of his property was introduced by him, she said “she did not come for his money, but for his life.” In fine, if the testimony of the witness Fitzharris could be relied upon with absolute confidence, it would appear beyond reasonable doubt, so far as the testator was concerned, that all heart burnings and resentments had been removed and that love for his sister reigned in his heart. It is claimed that the legitimate result of this reconciliation was a change of testamentary intention in regard to his property, so that the sister, instead of those who were wounding his feelings by slighting remarks concerning her, naturally became the object of his bounty.

Mr. Fitzharris’ testimony was challenged upon the hearing as partisan, if not worse, and I should be quite disinclined to decide a case of .the importance of this one upon his uncorroborated testimony, although there was no impeachment of this witness made, nor attempted, save that furnished by his own somewhat contradictory statements in regard to some minor matters testified to by him. But such corroboration is found in the testimony of Mrs. Kate R. Vail, the manager of the Laurel house at Patchogue during the summer of 1890, where William H. Green and his sister took up their abode on the 26th of July, and where William Green remained until his death. This witness, who was a stranger to the parties till that time, appeared to be disinterested, frank and independent, and á' person of much intelligence. Her appearance and manner of testifying impressed me favorably, and satisfied me she was a truthful witness. She testifies that she had several conversations with Mr. Green at her house; that “about 11 o’clock on the following Monday, after he came there on Saturday,” she found him alone, sitting on the piazza, with a lot of newspapers before him; he told her “his sister had gone to Troy to close up her house; he said he had been at Patchogue before, and liked the place, and chatted upon general topics. I asked him how long he was going to stay. He said he 'was going to stay quite a little while.’ He said he had been to Brighton, but did not like it there, that it was very noisy at night; he was not able to sleep; that he liked it here at night, that he was not disturbed, and was able to sleep. I asked him where he was going from here, and he said 'I am going home with my sister Georgie, and I am going to live with her; I have not lived with her recently, but I am going back to live with her/ He said 'I shall go back to live with her now as long as I live, and if I live until next year, and you run the house, I shall come back here.’ He said he had sent for his sister, and she came to take care of him. He said she gave him the very best care. He said his ‘sister had gone up to close the house, went up Saturday, and would not be back until Tuesday. This was Monday I had the talk with him. He took his dinner upon the piazza that day.” Witness testified she frequently saw William H. and his sister in his room together; she was reading to him, fanning him, and rubbing his hand, and they appeared kind and affectionate toward each other. On another occasion he said: “She was a good, kind sister to him, and that she had been kind and faithful to him during his sickness; that he was going back to live with Georgie; that she was the best friend he ever had.”

It must be remembered that the "witness knew nothing of these parties, that she had not met Miss Green; that Miss Green "was absent at the time of the conversation, had been gone for two days; that the testator was in comparative health, able to walk about the piazza; that he was at the time alone, so that he had ample opportunity to communicate with the Barnes and Greens had he so desired; and if in the making of the last will he had been coerced, unduly influenced, or even overpersuaded, the act was so recent that such influence would have been likely to have left its impress, and have found expression in that conversation, instead of expressions entirely the reverse.

This testimony was not challenged or impeached or sought to be by the contestants of the later will, and it shows a condition of mind upon the part of the testator in absolute accord with the testamentary disposition of his property made by his last will and with the statements of the witness Fitzharris. Some corroboration also is found in regard to his removal to Patchogue (which was regarded by the proponents of the first will as a "suspicious circumstance, since it was claimed that it was done solely for the piirpose of placing him beyond the influence and reach of the Barnes) in the letter of Mr. Green, dated July 21,1890, to Miss Crowell, in which he says: “I have been very ill; had several physicians, my sister also closed the house and came down from Troy to nurse me back to health if possible, and will in a week or so take me to another seashore resort, as we don't like this one very well.”

Some question was made upon the trial as to the effect as evidence of the declarations of a testator made prior and subsequent to the making of the will.

It is well settled that the fact of fraud or undue influence can not be proved by the declarations, prior or subsequent, of the testator, but such declarations are admissible when they denote the mental status or mental fact in issue.

It is always open to inquiry whether undue influence in any case operates to produce the will, and the conduct and declarations of the testator are entitled to more or less weight whether made before or subsequent to the making of the will, depending somewhat on the circumstances of each particular case. Subsequent declarations are competent when made so near the time of the execution of the will that a reasonable conclusion may be drawn as to the state of mind of the testator at the time the will was executed. Shailer v. Bumstead, 99 Mass. 128; Waterman v. Whitney, 1 Ker, 157; Marx v. McGlynn, 88 N. Y. 357.

The declarations in this case which were made to Mrs. Vail were made so near the time of the making of the will (four days) that they are clearly competent as showing the state and condition of mind under which the last testamentary disposition of testator’s property was made, and therefore are not only competent, but cogent evidence upon the material question here at issue. And finally the proponent of the later will invokes the rule that the law presumes a testator of sound mind and free volition will in general bestow his goods upon his next of kin and will not disinherit his- heir, and assert the further rule that a change of testamentary intention, however sudden, which results in giving the inheritance to the heir is not even ground for serious suspicion, when tire change follows a reconciliation after estrangement. I think the rule claimed is correct-and that it applies in this case, and especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.

Finally, with the most careful and conscientious thought that I have been able to bestow upon this matter, which has involved a great amount of time and labor in the examination of many hundred pages of testimony and voluminous briefs of counsel, I have reached the conclusion, in view of the fact that the testator felt that he was “soon to join the great majority,” and had sent for his sister who thereafter nursed him tenderly and of whom he declared that she was his best friend and that lie was going to live with her during the balance of his life, that' the differences which had so long existed between them, which found such sharp expression in his former wills and his letters to the Greens, were removed and that there was a complete reconciliation and a burial of resentment antedating the last will. That thereafter, in the light of that fact, every succeeding circumstance, including the exclusion of the Barnes, the making of the later will, the giving of the power of attorney, the exclusion of the Greens as objects of his bounty, and the inclusion as legatees of his cousins upon his mother’s side, appears rational and reasonable, and I find that the testator made his later will uninfluenced save by ties of blood, duty, gratitude and affection.

Let a decree be entered admitting the will of July 22, 1890, to probate.

(Note.—Affirmed by General Term without opinion, 67 Hun, 527, 61 St. Rep. 938.)


source: Caselaw Access Project

author: Ransom, S.

license: Public Domain

text:
    In the Matter of the Estate of Hezron A. Johnson, Deceased.

      (Surrogate’s Court, New York County,

      Filed June 16, 1892.)
    Collateral inheritance tax—Time of vesting of estates.
    Te'stator, after making a will giving his property to his wife and issue, executed a deed of trust by which he transferred his property in trust for the support and maintenance of himself and family and on his death to distribute it according to the provisions of the will. Held, that the legatees took by virtue of the will and not the deed, and that the law in force at the death of testator should govern, and such death having taken place subsequent to the passage of the act of 1891, the interests of the wife and children were, taxable.
    Motion for reargument.
    The report of the appraiser was overruled by the surrogate in the following opinion:
    Ransom, S. The appraiser has reported that the property to which the wife and children of testator became entitled vested at the time of the execution and delivery of the deed, and passed by such deed and not by his will; that the time of such vesting being before the act of 1891, the deed is not affected thereby, and, consequently their interests are not subject to the payment of the tax imposed by the amendment of 1891. It is very plain that no interest vested in these legatees by virtue of the deed. Townshend v. Frommer, 125 N. Y. 446, 36 St. Rep. 133. Whatever interest they received from the decedent they became entitled to by virtue of the provisions of the will, and they are unaffected by the de;ed except so far as by it the grantor reserved to himself the right to dispose of his estate by will. The interests of the wife and children are subject to the amendment of 1891. The matter will be remitted to the appraiser to report, anew in accordance with these views.
    Miller, Peckham & Dixon, for executrix; Edgar J. Levey, for comptroller.
   Ransom, S.

The testator, by his will, executed May 13, 1882, and a codicil executed May 22, 1889, gave his property in certain proportions to his wife and issue. On November 29, "1889, he executed a deed of trust by which he transferred the bulk of his property, real and personal, to a trustee in trust to invest the same and apply the income therefrom to the support and maintenance of the grantor and his family, and upon the death of the grantor to distribute and pay over the property and its proceeds to and among the heirs or representatives of the grantor in accordance with the provisions of his will. The testator died in September, 1891, subsequent to the passage of the act by which the law was amended so as to subject to taxation the personal estate of decedents bequeathed to wife or children, where the beneficial interest exceeds $10,000.

The appraiser reported that the legatees were exempt, holding that they took by virtue of the deed a vested interest in the estate. The surrogate, in a decision appearing at page 200 (April 26, 1892), overruled the appraiser, and held that the legatees took by virtue of the will; consequently, their interests were taxable. The executrix now moves for a reargument, basing her motion upon the decision of the Court of Appeals in Genet v. Hunt, 113 N. Y. 158, 22 St Rep. 774. That case was brought for the construction of the will of Caroline M. Riggs, who, in anticipation of marriage, executed a trust deed, by which she conveyed all her estate, real and personal, to trustees to receive the income and apply the same to her use during coverture, and upon the further trust, if she should die during coverture, to convey the same to such devisee or devisees, in such share or proportion, as she by her* last will and testament may direct; and in default of any such direction to convey the same unto such persons living at her death, and being her heirs-at-law, as would be entitled to take the same by descent in case the same was land belonging to her in the State of Hew York. Testatrix died during coverture, having executed a will by which she directed that said estate he set apart into two equal shares for the benefit of her children. She directed her executors and trustees to take charge of the property, to manage the same, and to apply the income to the support, maintenance and education of said two children during minority, and upon their respectively attaining twenty-one years of age to pay over to each child after so attaining that age the net income of one-half said estate during their respective lives; and after their deaths respectively the respective shares of said estate set apart as above directed shall go to and belong to their heirs-at-law and next of kin respectively, in the same manner as though they were respectively absolute owners of the same. In case of the death of either of said children before attaining majority and without issue, the share set apart for the benefit of the one so dying to be applied to the use of the survivor. If issue, then the issue to receive the same. In case of the death of both children without issue, before attaining majority, then upon the death of the longest liver the property was given, after the payment of certain legacies, in equal shares to her brothers and sisters and their issue. The question presented was whether the trusts created were valid. If the testatrix was the absolute owner of the property at her death, then the trusts were valid, for the absolute ownership was to vest at the furthest within the lives of the two children. The court held that the validity of the trusts was to he determined by the test whether it would be valid if it had been part of the limitation -in the trust deed and had been inserted therein at the time the deed was executed; that for the purpose of determining this question the deed and the will must be read and construed together, and inasmuch as when so read they provided for a possible suspension of the power of alienation for three lives they were invalid. An additional reason was that the two children upon whose lives the trusts in the will are limited were not in being when the trust deed was executed and could not have taken such an estate as was limited under the will if it had been limited in the same manner in the trust deed.

It was absolutely necessary that the will should be executed- and admitted to probate for tire purpose of giving effect to the power reserved in the deed. 4 Revised Statute, part 2, chapter 1, article 3, section 115. Without the will the legatees named therein would not have taken the same interest. While the two instruments are construed together for the purpose of determining the disposition made thereby, and for other purposes, it is a fiction of law which is only resorted to for equitable purposes and its application is not unlimited. As is said by Lord Sugden: “Where a person takes by execution of a power, whether of realty or personalty, it is taken under the authority of that power, but not from, the time of the creation of that power. The meaning that the persons must take under the power, or as if their names had been inserted in the power, is that they shall take in tire same manner as if the power and instrument executing the power had been incorporated in one instrument; then they shall take as if all that was in the instrument executing had been expressed in that giving the power. So it is in the appointment of uses. If a feoffment is executed to such uses as he shall appoint by will, when the will is made, it is clear that the appointee, cestui que use, is in by the feoffment, but has nothing from the time of the execution of the feoffment so as to vest the estate in him. The estate will vest in him according to the nature of the act done and appointment of the use from the time of the testator’s death. This, therefore, is not a relation so as to malee things vest from the time of the power, but according to the time of the act executing that power; not like the referring back in cases of assignment in commission of bankruptcy, that is, by force of the statute, and to avoid mesne wrongful acts,” citing the decision of Lord Hardwicke in the Duke of Marlborough v. Lord Godolphin, 2 Ves. Sr. 61 ; 2 Sugden on Powers, 23.

The doctrine thus stated is approved in this State in Jackson v. Davenport, 20 Johns. 536-550, the chancellor saying: “This doctrine, that a deed executing a power refers back to the instrument creating the power, so that the party is deemed to take under the deed from the grantor by whom the power was created, and not from the power, is a fiction of law, and so it was considered in Bartlet v. Ramsden, 1 Keb. 570, relatio est fictio juris, according to the resolution in Menvil’s Case, 6 Co. Rep. 416, and is upheld to advance a right-, not to advance a wrong, or to defeat collateral acts which are lawful, and especially if they concern strangers.”

In Seibert’s Appeal, 110 Pa. St. 329, testator, by his will, bequeathed his property to certain collateral relatives, and for religious and charitable purposes; subsequently he transferred all his property, by deed duly acknowledged, to the persons named as executors in his will, they to receive the income of the same to their own proper use during the life of the testator, and at his. death to hold the same for the uses and purposes set forth in said will. The court said: “The intent of the testator is to be deduced from the language of his will. An examination thereof clearly leads to the conclusion that its main purpose was to prevent his property from liability to a collateral inheritance tax. The property which he sought to transfer was not to take effect in enjoyment until after- his death. This clearly subjects the property to a collateral inheritance tax under section 1 of the act of 1826. The deed executed by the testator on the 14th of August, 1882, did not change the time of enjoyment previously designated in his will. It expressly declared the vendees shall hold the property in trust for the uses and purposes set forth in said will.” Citing Reisch v. Commonwealth, 10 Out. 521; s. c., 106 Pa. 521.

It will be seen that the Pennsylvania courts, in the cases cited above, while recognizing the fiction of law that the deed granting the power and the will executed thereunder are to be construed as one instrument, hold that the instrument is to be regarded as a deed to take effect in enjoyment upon the decedent’s death. The statute of this State corresponds in its language to the Pennsylvania act, and should receive a similar construction. The law when the deed goes into effect, viz.: the death of the testator or donee of the po-wer, should govern, not the law at the time the deed was executed.

In New York Life Ins. & Trust Co. v. Livingston, 44 St. Rep. 102, Judge Andrews, writing the opinion of the Court of Appeals, says: “The testator owned the property embraced in the trust prior and up to the time the deed was executed. He reserved therein a beneficial interest during his life and a power of appointment by will. This was little less than ownership, and the statute, for the purpose of construing a disposition by will under a power of appointment, treats the subject of the power as the property of the donor of the power, and, conclusively, infers an intention in a testator to execute a power where-the will disposes of all his property, and the inference is not rebutted except by express language or necessary implication.” The language of the Revised Statutes, 1 Rev. Stat. 737, section 136, is not entirely without significance: “Lands embraced in a power to devise shall pass lay a will purporting to convey nil the real property of the testator unless the intent that the will shall not operate as an execution of the power shall appear •expressly or by necessary implication.”

Some test of the logic of the position of the executrix may be gained by suggesting, could it be successfully claimed that, for the purpose of charging interest or penalty upon a bequest given in a will which was executed under a power contained in a deed, that the legacy would relate back to the execution of the deed, and that, therefore, the tax accrued at the date of the delivery of the deed, and at that time interest began to run ?

Motion for reargument denied.


text:
      In re Leavitt’s Estate.

      (Surrogate’s Court, New York County,

      June, 1892.)
    Executor—When he should give bond as surviving partner.
    It having been provided by articles of copartnership that on the death of one of two partners, the surviving partner might agree with the representative of the decedent as to the continuation or sale of the business, held, that as, on the death of one of the partners, the only executor who qualified was the surviving partner, and as he could not therefore agree with himself as to the matters mentioned in the articles, he should, pending an appeal by him as to the amount due to the estate by the firm, give bond, under Code Civ. Pro. sec. 2687, subd. 3, for the funds (representing decedent’s interest in the firm) retained by him as executor, the testator’s widow and one of the petitioners having consented to such retention' pending the convenient winding up of the business.
    Petition to revoke letters testamentary and to remove ait •executor and testamentary trustee.

      I Josephine A. Kmubley and Margaret Robert Leavitt petitioned for the removal, and the revocation of letters testamentary of John Howard Foote, executor and trustee of Henry M. Leavitt, deceased!, on the ground that as surviving partner of deceased he had continued the business in which they had been enaaged, and had retained in the business a sum of money representing the interest of decedent in the firm, admitted to be due the estate.
    Robinson, Biddle & Ward, for petitioners; Miron Winslow, for executor.
   Ransom, S.

Application to revoke letters and to remove testamentary trustee. The ground for the application relates to the disposition of a fund of $30,000, which represents the interest of decedent in a firm of which the respondent is sole surviving partner. It remains (the larger part) still invested in the business at six per cent, interest. The articles of copartnei’ship provided that “in case of death of either party the business shall be settled up as soon thereafter as may be deemed expedient by consent of the survivor and the legal representatives of the party so dying, and the interest of each shall be determined and the business continued or sold as may be mutually agreed upon.” But one of the executors qualified— the surviving partner—and it seems clear that under tire circumstances he could not agree (as executor) with himself ■ (as surviving partner) as to the matters referred to in the copartnership articles. There would be an absolute disqualification on his part.

The respondent shows that shortly after testator’s death the widow aud one of the petitioners herein wrote the respondent that the interest of testator in the business might be continued until such time as respondent could conveniently arrange to close it without embarrassment or loss'to him or any interruption to the success of the business. It is certain that up to the present time no complaint has been made of the conduct of the executor on this score. It is equally plain that the executor fears a possible embarrassment of his business may be caused by the withdrawal of this large sum from the capital of his concern. The petitioners allege, but cannot be said to have established, the financial irresponsibility of the respondent.

On the accounting of the executor there was a contest as to the amount due to the estate from the firm. The referee allowed certain deductions, but was overruled by the surrogate, whose decision was affirmed at General Term. An appeal is now pending to the Court of Appeals. The prosecution of this appeal by this respondent will not be prejudiced by the determination of this application in favor of petitioners, as the judgment against respondent is personal as well as.official, and he can personally prosecute the appeal notwithstanding his letters may have been revoked.

The suggestion of respondent that the estate may suffer if there is an immediate liquidation of the business forced by the necessity of paying the estate the balance due from the firm, is not reconcilable with his other statements, where he seeks to impress the. court- with his undoubted financial responsibility. The fund is earning six per cent, interest in the executor’s hands, which is considerably in excess of the income usually derived from investment of trust funds. But the investment is not sanctioned by the law, and it may be that the estate would have the right to hold the executor to account for a sum in excess of six per cent, if by its illegal investment in respondent’s business it has earned a greater rate of profit. Section 2685, subdivision 2, makes an investment- in securities unauthorized by law ground for revocation of letters. Under section 2687, subdivision 3, the surrogate may direct the executor to give a bond within five days where the circumstances of the executor are such that they do not. afford adequate security to persons interested. I think that under the circumstances this latter provision should be required.

The respondent must give a bond as provided in section 2687, subdivision 3, for the funds retained by him as executor.


author: Spring, S.

text:
      In re Boardman's Will.

      (Surrogate’s Court, Cattaraugus County,

      December 29, 1891.)
    1. Will—What is a sufficient execution.
    A will will be admitted to probate when the testator sent for the subscribing witnesses to come to his house to witness the execution, and he was explicit in his declaration that it was his will, and in his request to them to sign as witnesses, and one of the witnesses was explicit in testifying testator signed the will in their presence, although the other witness had no definite recollection, but had an impression it was not signed by testator in their presence, and that he did not observe his signature—ten years having elapsed from its execution and the latter witness having written the date of the will immediately preceding the signature of the testator, thereby allowing the assumption that so important an omission as the absence of testator’s signature would have attracted his attention.
    2. Same—Proof of execution by inspection.
    When there was a doubt as to whether testator executed a codicil to his will in substantial compliance with the statute, and both witnesses testified that testator said the paper he produced was a codicil to his will and asked them to subscribe as witnesses, which they did in his presence, held, that as an examination of the instrument showed that the signatures were all written with the same ink, and apparently at the same time, the codicil should be admitted to probate.
    3. Will—Construction—Uncertainty of beneficiary.
    A bequest to “ the heirs of ” a deceased daughter is not void for uncertainty as to the beneficiary.
    4. Same—Provision as to monument.
    The will in question directed that after payment of debts the balance and remainder of the estate, r.eal and personal, should be expended in the building of a monument and a suitable fence and fixtures. Held, that this was no more than a direction to his executors to set apart a reasonable portion of the estate, suitable to testator’s station in life, for that purpose.
    Proof of will,
    Nash & Willson and W. S. Thrasher, for proponents; D. E. Powell and William Woodbury, for contestants.
   Spring, S.

—The testator sent for the subscribing witnesses to come to his house in the night, to witness the execution of his. will. It had been previously drawn, and he personally supervised its execution. He was explicit in his declaration" that it was his will, and in his request to them to subscribe it as witnesses.

One of the witnesses is explicit in testifying testator signed the will in their presence, while the other has no definite recollection, but an impression it was not signed by the testator in their presence, and that he did not observe his signature.

Ten years have elapsed since its execution, and Mr. Huntom has evidently forgotten the details of the occurrence.

He wrote the date of the will immediately preceding the signature of the testator, and so important an omission as the absence of the name of the testator would have attracted his attention.

There is more doubt as to the codicil. That instrument, however, does nothing but appoint an executor, and I think there was in its execution a substantial compliance with the statute.

He took the will and codicil to the store personally, and while this codicil was not a holograph instrument, it was prepared for' him before he went to have it executed. It was drawn on the back of the original will, and testator was evidently familiar with the formalities incident to the execution of wills, as is shown by the clearness of his directions when the original’ will was drawn.

Both witnesses agree that he said it was a codicil to his will' and asked them to subscribe as witnesses, which they then did in his' presence. In controversies of this kind it is proper to make an inspection of the document itself. See Matter of Wilcox, 37 St. Rep. 462. And an examination of the signatures convinces me they were all written with the same ink and apparently at the same time.

Both the will and codicil should be admitted to probate.-

The will was as follows:

First. I give and bequeath to the heirs of my daughter Moriah Theresa Eddy now diseased the sum of five hundred (500) dollars shair and shair alike.

Second. That after paying all my debts after my death it is my will and direction that the ballance and remainder of all my property, booth real and personal, shal be expended in the building and erecting a monument at the head of my grave ■togather with sutible fense and fixtures.

• The construction of the second clause of the will is put in issue by the objections filed. The counsel for the contestants, in a very elaborate brief, argues with much ingenuity that there is no ascertained beneficiary, and hence that the will is void for uncertainty, and cites a number of authorities, of which Holland, v. Alcock,. 108 N. Y. 312, 14 St. Rep. 761, and Read et al. v. Williams, 125 N. Y. 560, 35 St. Rep. 909, are samples. I do not think those cases are applicable. Had the testator directed in plain, unequivocal terms that his executor’s expend a reasonable sum in the purchase of a monument to be erected at his grave, no one would have questioned the validity of the direction. The erection of a monument is one of the incidents to the administration of an estate of a decedent of the same class as funeral expenses. Wood v. Vandenburgh, 6 Paige, Ch. 277-285. And such a provision is one that a testator has the right to make, even to tire extent of all of his property. Pfaler v. Raberg, 3 Dem. 360; Matter of Frazer’s Accounting,. 92 N. Y. 239-249; Emans v. Hickman, 12 Hun, 425.

But" .a fair interpretation of this clause is no more than a direction to his executors to set apart a reasonable portion of" his estate for the purposes stated. He was a farmer who had acquired a "small competence by dint of the frugality and self denial which the life of a small farmer implies. He had reared a large family who had remained with him until they severally attained majority. He lived at a distance even from a small village, and a man of his stamp would hardly desire that the entire savings of his provident life should be devoted to the erection of a tombstone in a country graveyard, soon to be covered over with the weeds and vines, which are the usual adornments of such a place. He provided for a suitable fence and fixtures, and evidently had in mind a corresponding fitness in the purchase of his monument But he preferred to trust to the wisdom of his executors in making this outlay than to his children, who had left home and become scattered.

In Emans v. Hickman, 12 Hun, 425, supra, a similar direction was construed to mean an expenditure suitable to his station in life. While a literal interpretation of the language eonployed would seem to imply testator intended to have all his residuary estate used in the erection of this monument and the adornment of his burial lot, yet, in arriving at his real intent, we must look at all the circumstances surrounding his life, and they would not uphold so extravagant an outlay.

Certainly this interpretation does no greater violence to the language used than in the case cited. The testator provided in this clause that all of his property remaining after the payment of his debts should he expended for the purposes stated. A literal construction of this language would lead to the exclusion of the bequest in the first clause, and such assuredly was not his intention, for he designed the monument clause to be subsidiary to the previous bequest.

Wherefore, a fair interpretation of his will leads to about the following results:

First. The payment of the expenses of this proceeding, and of administration.

Second. The payment of his debts and ordinary funeral expenses.

Third. The payment of the first bequest.

Fourth. The purchase of a monument and the adornment of his burial lot, for which no more than $500 should be expended.

Fifth. The balance to his heirs-at-law and next of kin in accordance with the laws of descent and distribution.

(Note as to what is a due execution of a will under 2 Rev. Stat. section 40, and Code Civ. Pro. section 2620.

Statutes.—General Observation.—Testator's Signature. —Acknowledgment. — Publication. — Signature of Witnesses at Testator's Request.—Execution Under Code Civ. Pro. section 2620.

Statutes.

It is provided by 2 Rev. St. 63, section 40, that every will shall be executed and attested in the following manner:

1. It shall be subscribed by the testator at the end of the will.

2. Such subscription shall be made in the presence of each witness or acknowledged to each witness.

3. The testator at the time of making such subscription, or acknowledgment, shall declare the instrument so subscribed to be his last will and testament.

4. There shall be at least two> attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator.

Code Civ. Pro. section 2620, provides that “If all the subscribing witnesses to a will are, or if a subscribing witness, whose testimony is required is, dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify; or if such a subscribing witness is absent from the State; or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will, the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.”

General Observation.

It will be observed under the statute there are four essential requisites to the due execution of a will:

1. Testator’s signature at end of will.

2. His signing, or acknowledging his signature, in the presence of each witness.

3. Publication by testator at the time of signing or acknowledgment.

4. Two attesting witnesses, each of whom shall sign his ñamé as a witness at the end of the will, at testator’s request.

There must be a substantial compliance with these requisites otherwise the will is not properly executed, even although there is not the slightest fraud. (Matter of Andrews, 162 N. Y. 1.)

Attestation clauses to wills usually contain an allegation that the witnesses signed the will in the presence of testator and of each other.

But this, although desirable, is not necessary. (Spaulding v. Gibbons, 5 Redf. 316 ; Lyon v. Smith, 11 Barb. 124; Hoysradt v. Kingman, 22 N. Y. 372; Matter of Phillips, 34 Misc. 442.)

If it is not intended that the witnesses should, or they do not, sign in presence of testator and of each other, the draughtsman should, before the witnesses sign, omit the allegation from the attestation clause, as an untrue attestation clause may result in a failure to establish statutory execution.

The burden of proof is on the proponent to prove that the will was duly executed, and the requirements of the statute complied with. (Matter of Hurlbut, 48 App. Div. 91; Matter of Elmer, 88 Hun, 290, 68 St. Rep. 417.)

Even if the proof be clear as to formal execution and attestation, proponent must show affirmatively that testatrix had an intelligent knowledge of the contents of the will. (Barry v. Boyle, 1 T. & C. 422; Townsend v. Bogart, 5 Redf. 93; Hyatt v. Lunnin, 1 Dem. 14; Cooper v. Benedict, 3 id. 136; Heath v. Cole, 15 Hun, 100; Jonas v. Jones, 42 id. 563; Matter of Green, 67 id. 527; Matter of Sampson, N. Y. L. J., June 7, 1891 (N. Y. Sur. Ct.) ; Rollwagen v. Rollwagen, 63 N. Y. 504; Re De Castro, 32 Misc. 193.

An attorney who prepares and superintends the execution of a will, but is not a subscribing witness thereto, is not a competent witness as to its execution. (Matter of Sears, 33 Misc. 141.)

Testator's Signature.

A will is not subscribed at the end thereof within the meaning of the statute, when it is drawn on a printed blank of four pages joined at the sides, and the draughtsman having filled the blank on the first page, turned to the third page and filled that, marking it at the top, “2nd page,” and then turned to1 the second page, containing in print at the top, the appointment of the executor, and the attestation clause, and marked it at the top “3rd page,” and the will was thereupon executed by the testatrix affixing her signature at the end of the printed matter on the second page, the witnesses also affixing their signatures at the foot of the printed attestation clause on the same page.

The will on the first and second pages was complete, and the coui’t observed that “there is nothing to prevent filling up the vacant third and fourth pages with any number of additional provisions, including, as in this case> a residuary clause;, allowing an executor to dispose of the residue in such manner as he deemed proper,” but added, “The question is not whether from the proofs in this case the page following the signatures of the will is in fact a part of testatrix’s,will by reason of her established intention, but is the instrument so drawn, subscribed at the end thereof as the statute commands ?” (Matter of Andrews, 162 N. Y. 1—citing Sisters of Charity v. Kelly, 67 N. Y. 409 ; Matter of O’Neil, 91 N. Y. 516; Matter of Conway, 124 N. Y. 455; Matter of Whitney, 153 N. Y. 259; Matter of Blair, 152 N. Y. 645, 84 Hun, 581; Willis v. Lowe, 5 Notes of Cases, 428 ; Re Parslow, id. 712; Re Tookey, id. 386; Ayres v. Ayres, id. 375; Sweetland v. Sweetland, 4 Swabey & Tristram, 6; Smee v. Bryer, 6 Moore’s P. C. Cases, 404; Hays v. Hurden, 6 Penn. St. 409 ; Glancy v. Glancy, 17 Ohio St. 134.)

A will will be denied probate, when it appears, from the evidence of experienced handwriting experts, coupled with surrounding facts and circumstances, that the alleged signature of the testator is a forgery, although the two attesting witnesses gave positive testimony as to the execution of the instrument, and identified it, as they might be honestly mistaken, and their signatures upon the paper propounded reproduced from a genuine document not brought to light. (Matter of Albinger, 30 Misc. 187.)

It was held in In re Fitzgerald’s Will, 33 Misc. Rep. 325, that the fact that the will, was written on three sheets of note paper did not impair its validity,-when it also appeared that the several sheets had appended to them the testatrix’s signature, all for the obvious purpose of identifying each sheet as a part of the will. (Citing Matter of Snell, 32 Misc. Rep. 611, and cases cited.)

In Matter of Murphy, 48 App. Div. 211, however, the court held (although the point was not in controversy) that when a will is written “fly-leaf” (or where the fold is at the top of the instrument), and not “bookwise” (or where the fold is at the side), the sheets, being separate, must be fastened at the top by ribbon, metal clasp, mucilage, or other object.

Where, however, blank spaces intervene between the end of the instrument and the subscription, or provisions follow the ■subscription, probate will be refused. (Re O’Neill, 91 N. Y. 516; Re Whitney, 153 id. 259; Re Andrews, 43 App. Div. 294; Re Fults, 42 id. 593; Re Conway, 124 N. Y. 455.)

Probate of a will which-is partly printed and partly written, will not be refused because there are blank spaces between the written and printed matter not ruled off. (Matter of Murphy, 48 App. Div. 211.)

When a testatrix in the presence of two witnesses writes her name in a blank space left purposely by her in the attestation clause, and thereupon, declares the paper to be her will, and requests the Avitnesses to sign as subscribing witnesses, which they do in her presence, there is a sufficient subscription by testator at tho end of the instrument. (Matter of Noon, 31, Misc. 420, 65 N. Y. Supp. [99 St. Rep.] 568—citing Matter of Acker, 5 Dem. 19; Re John Walker, 2 Swaby & Tristam, 354; Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of Andrews, 162 N. Y. 1.)

A will partly written and partly printed, and which is signed at the end as required by the statute, will be refused probate when it appears that another paper on which was written several bequests was attached to the will by means of pins at the end of the second clause thereof, although no fraud was intended. (Matter of Fults, 42 App. Div. 593, 59 N. Y. Supp. 780. See ■also Matter of Whitney, 153 N. Y. 259, 47 N. E. R. 272; reversing 90 Hun, 138, 70 St. Rep. 259, 35 N. Y. Supp. 798.)

A testator’s signature after the attestation clause, when pothing intervenes, is a signing at the end of the will. Matter of Laudy, 78 Hun, 479, 60 N. Y. St. Rep. 700, 29 N. Y. Supp. 574, 62 N. Y. St. Rep. 225, 30 N. Y. Supp. 848.)

Otherwise, when clauses of the will intervene between the signature and attestation clause. (Matter of Sanderson, 9 Misc. 574, 62 N. Y. St. Rep. 225, 30 N. Y. Supp. 848.

Acknowledgment.

The will (even though holographic, and though the witnesses saw decedent’s signature, and read the attestation clause or a portion thereof, including the words therein, “will and testament”) must- be either signed in presence of the attesting witnesses, or acknowledged to each of them by the testatrix as her will, and also declared by, or in some way communicated by, her to tire witnesses that it was her will'. (Matter of Turell, 166 N. Y. 330; affirming s. c. 28 Misc. 106.)

Two of the subscribing witnesses to- a will testified that all the statutory requirements were complied with, except only that the deceased did not sign the instrument in their presence or exhibit her signature to them. The will was holographic, and decedent was an intelligent woman'. Three witnesses signed the attestation clause: The third witness', not examined, made, no question as to its accuracy. Lleld, on the testimony of a fourth witness, who testified that every statutory formality was complied with, that the will should he admitted to probate. (In re Fitzgerald’s Will, 33 Misc. Rep. 325—citing Matter of Cottrell, 95 N. Y. 329; Matter of Carey, 24 App. Div. 541, 542; Code Civ. Pro: sec. 2620.)

If the witnesses do not see testator sign, but see testator’s signature, acknowledgment by testator is not necessary, provided the will is duly published. (Matter of Markey, 110 N. Y. 611; Matter of Bernsee, 141 N. Y. 389.)

Where there is no fraud, if the signature of testatrix is visible and the witnesses hear the acknowledgment, and the declaration by testatrix that it is her will, but they do not look closely to see tire signature thus acknowledged, probate should not be refused because the witnesses are ignorant, careless or indifferent. Ah inflexible rule that the witnesses must remember that they not only saw, hut recognized and identified the signature of the testator at the time of acknowledgment, would sometimes defeat the object of the statute and lead to injustice-. (Matter of Laudy, 161 N. Y. 429, 55 N. E. 914; reversing Matter of Laudy, 31 App. Div. 630.)

Acknowledgment to one witness is insufficient when neither witness saw testatrix sign, nor saw her signature. (Matter of Abercrombie, 24 App. Div. 407, 43 N. Y. Supp. [82 St. Rep.] 414.)

Although' one of the witnesses testified that testator did not sign will, or acknowledge it in his presence, the will may be admitted to probate when it appears from the evidence that there was a substantial compliance with the statute. (Matter of Carey, 24 App. Div. 531.)

The testator must sign before the witnesses sign, otherwise he must acknowledge his signature to them. (Matter of Blair, 16 Daly, 540, 16 N. Y. Supp. 875.)

Publication.

' Publication is as necessary in the case of a holographic will, as in other cases, although in the former case the facte of publication will not be so sharply scrutinized. (Matter of Turrell, 28 Misc. 106.)

It is not essential to the due publication of a will that the testator shall declare in express terms, in the presence of the subscribing -witnesses, that the instrument is his last will. It is sufficient if he in some way makes known to them, by acts or conduct, if not by words, that it is intended and understood by him to be his will. (Matter of Sears, 33 Misc. 141—citing Lane v. Lane, 95 N. Y. 494.)

When a long lapse of time has intervened since the execution of a will, and it has been prepared and executed under the superintendence of the attorney of the testatrix, who was a capable woman, and its terms were equitable, and no subsequent will was executed, it will be admitted to probate, although the witnesses cannot recollect the fact of publication or request to sign, when it appears that the attestation clause signed by the witnesses recites the fact that such publication and request were properly made. (Matter of Sears, 33 Misc. 141—citing Nelson v. McGiffert, 3 Barb. Ch. 158; Matter of Bernsee, 141 N. Y. 389; Matter of Pepoon, 91 id. 255; Matter of Cottrell, 95 id. 329; Brown v. Clark, 77 id. 369; Matter of Graham, 9 N. Y. Supp. 122; Matter of Hunt, 110 N. Y. 278; Matter of Rounds, 7 N. Y. St. Rep. 730; Matter of Townley, 1 Connoly, 400; Matter of Wilcox, 14 N. Y. Supp. 109 ; Matter of Lantry, 5 id. 501; Matter of Frey, 2 Connoly, 70.)

When a will, after being written out, was read over to a testatrix, who then said, in the presence of both the subscribing witnesses that “it was all right,” there is sufficient evidence of publication. (Matter of Buell, 44 App. Div. 4, 60 N. Y. Supp. [94 St. Rep.] 385.)

Probate will be refused when testatrix requested the only witness produced to sign the “instrument,” even although a full attestation clause declared the instrument to be her last will. (Matter of Delgrat, 27 Misc. Rep. 355.)

Signature of Witnesses at Testator's Request.

A full attestation clause supplies whatever omissions there are in the oral testimony as to the reo nest to the witnesses to apnend their signatures. (Matter of Bernsee, 141 N. Y. 389.)

It is not necessary that the attesting witnesses should sign in the presence of the testator. In Matter of Phillips (Sur. Ct., N. Y. Co., 1901), 34 Misc. Rep. 442, the witnesses signed their names to the will in a room adjoining that in which the decedent was lying, and they did not agree as to whether the decedent could have seen them as they wrote their names. All the other statutory formalities were complied with. Held, that the will was entitled to probate—citing Lyon v. Smith, 11 Barb. 125; Ruddon v. McDonald, 1 Brad. 352; Herrick v. Snyder, 27 Misc. Rep. 462, 59 N. Y. Supp, 229.

The witnesses sign at the end of a will when they sign at the beginning of the fourth page of a sheet of note paper, the second arid third pages being blank, and the testator’s signature appearing at the foot of the first pase. (Matter of Singer, 19 Misc. 679, 44 N. Y. Supp [78 N. Y. St. Rep.] 606.)

When in substance and effect it appears that, either by testator’s own direct request, or that of her attorney, who drew the will in her presence, and asking, in her aid and assistance, the twro witnesses were requested to subscribe to it as her will, and as subscribing witnesses, held that the requirements of the statute were complied with. (Matter of Voorhis, 27 St. Rep. 368, 7 N. Y. Supp. 596, 4 Silv. 504.)

The witnesses do not sign at the end of the will, when before its execetion a clause is added after the attestation clause, and the witnesses sign at foot of the attestation clause and before the added clause, although the testator signs and seals same after the testimonium clause and also after the added clause, and the will is therefore not executed in accordance with the statutory requirement. (Matter of Blair, 84 Hun, 581, 66 N. Y. St. Rep. 320, 32 N. Y. Supp. 845.)

Execution Under Code Civ. Pro. Sec. 2620.

Where the subscribing witnesses to a holographic will, as well as the testator, were dead, and their signatures to the will (which was a natural one) were satisfactorily uroved, and a notary testified that the testator brought the will (which was executed in 1863) to him in 1890 to “freshen it up,” that testator detailed the circumstances of execution, showing that the statute had been complied with, and that he (the notary) thereupon drew an acknowledgment upon the will and testator signed and swore to it before him as a notaiy public, held, that although there wras no attestation clause, yet as the most liberal presumption in favor of due execution should (from the age of the document) be indulged in, although it was doubtful if it could be considered an ancient document, and as it appeared by the will itself that it was published and declared by the testator to be his last will and testament, and was signed, sealed and delivered on the 9th day of January, 1863, this, coupled with testator’s declarations (which were competent evidence), sufficed to warrant the surrogate in admitting the will to probate under Code Civ. Pro. sec. 2620. (Matter of Briggs, 47 App. Div. 47, 62 N. Y. Supp. [96 St. Rep.] 294.)

Where a witness (a lawyer) is dead, a will and codicil will be admitted to probate under Oode Civ. Pro. section 2620 on proof of the handwriting of the testator and of the deceased witness, when there is a full attestation clause^ although the surviving "witness could not recollect the circumstances attending the execution of the will, but he did remember testator’s request to him to sign as a witness and identified his signature under the attestation clause. (Matter of Brissell, 16 App. Div. 137.)

When the signatures of testator and of a deceased witness have been proved, and another witness testifies the statutory formalities were complied with, a will will be admitted to pro"bate, although a third witness wras not absolutely certain he saw testator’s signature at the time he witnessed the will, but thought he did, as the last page of the will was spread out before him. (Matter of de Haas, 19 App. Div. 266.)

To entitle a will to probate under section 2620, the testator’s signature must be proved. Where the testator signed by making his mark, and one of the witnesses was dead, and the other witness did not see the mark made, other evidence must be produced showing that testator actually made the mark. (Matter of Porter’s Will, 1 Misc. 262, 54 N. Y. St. Rep. 239, 22 N. Y. Supp. 1062.)


author: Davie, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of William H. Proctor, Executor of John Hildebrand, Deceased.

      (Surrogates Court, Cattaraugus County,

      Filed November, 1892.)
    1. Executors and administrators—Funeral expenses.
    Where an executor has proceeded in good faith, his claim for reimbursement for an expenditure of sixty dollars for 'funeral expenses should not be denied on the ground that such expenditure was unwarranted.
    2. Same—Assets—Widow’s allowance.
    Where the testator delivered to his executor certain notes with directions to collect the same and use the proceeds in paying his funeral expenses and' for a monument, such notes do not form a part of the assets of the estate and are not subject to the rights of. the widow.
    Settlement of the account of the executor of the will of John Hildebrand, deceased.
    J. K. Ward, for executor; E. D. Northup. for widow; A. Ward, creditor, in person.
   Davie, S.

John Hildebrand died in the town of Ashford,, Cattaraugus County, December 3, 1889, leaving a will, which was admitted to probate March 26, 1890. William H. Proctor was named in said will as executor, and now presents an account of his proceeding’s as such for judicial settlement. Testator left him surviving his widow, but no child. An appraisal of his estate was made, and an inventory thereof filed during the time that chapter 406 of the Laws of 1889 was in force. In making* such inventory, in addition to the articles exempt to the widow by thé Revised Statutes, 2 Rev. St. 83, the appraisers set off to her the other personal property of the testator; amounting to' $42.75. They also appraised and assumed to set off to her the real estate of the testator, consisting of twenty-five acres of land of the value of $625.' The executor sustained the’ funeral expenses oí the testator to the amount of sixty dollars, and incurred necessary expenses in the prohate of said will and in the administration of said estate to the amount of $99.70. The account filed shows an increase of inventory to the amount of $101.40. Such, increase arose from the following facts: Prior O to the death of the testator he delivered to Proctor two promissory notes owned by testator, -with instructions to collect the same, and use the proceeds thereof in defraying his funeral expenses and in the purchase of a tombstone for his grave. During his lifetime testator received from Proctor the sum of five dollars of the proceeds of said notes, and the balance, $101.40, remained in Proctor’s hands at the time of the death of the testator. The widow objects to the items charged in the account for funeral expenses as unreasonable and unwarranted, and asks that this increase of $101.40 be set off to her, claiming that the same is absolutely exempt to her under the statute referred to, chapter 406, Laws 1889, and that she is entitled to take the same free from charges for funeral expenses or expenses of administration. The objection that the amount paid out by the executor for funeral expenses is unwarranted is not tenable. The authority of an executor to pay the funeral charges of his decedent, even before the granting of letters, is regulated by statute. 2 Rev. St. 71. His duty so to do is -well defined under the common law. Rappelyea v. Russell, 1 Daly, 214. In determining whether an expenditure is warranted or not, the executor is only chargeable with knowledge of the apparent condition of the estate. In re Rooney, 3 Redf. 15. It is entirely apparent that the executor, in this case, has acted in entire good faith. The expenditure was a moderate one, and the executor’s claim to be reimbursed should not be denied on the ground that the expenditure was unwarranted.

A somewhat more perplexing question, however, is raised by the application of the widow to have this $101.40 set off to her. The widow could not, of course, be deprived of her statutory exemptions by any default on the part of the appraisers in not setting off to her all she was entitled to; and in a proper case the decree upon judicial settlement should remedy the omissions of the appraisers, Code Civ. Pro. section 2121. But I am of the opinion that the act of the testator in turning over these notes to Proctor, with instructions to expend the proceeds for a specific purpose, puts it beyond the claim of the widow. The testator had the unrestricted right to use the proceeds of these notes in any manner he saw fit, for his own individual benefit, or even to give the same away, without regard to the rights of the widow. Testator had substantially disposed of the proceeds of the notes; that is, he had turned the notes over to Proctor with express instructions to expend the receipts therefrom for a certain purpose; and Proctor was justified, without regal'd to the execution of his trust as executor, in making the disposition directed. The appraisers, in making the inventory and in setting off the real estate to the widow, evidently entertained a mistaken impression of the terms of .the statute. Chapter 406, Laws 1889. The widow gets no additional interest in the real estate in this case under the terms of that statute. Section 1 of that act amends the provisions of chapter 2, part 2, of the Revised Statutes, relating to title to real estate by descent, by enlarging the interest of the widow therein in eases of intestacy, bus Such section has no application to a case like this, where there is a will. The additional exemptions to the widow provided for by section 2 of said act are confined to personalty. The words of the act are: “In case the interest of the widow in the real estate of the deceased husband, in addition to her dower right, and together with said $150, shall be of less value than $1,000, then said appraisers shall set apart for the use of such widow .* * * personal property, which, together with said real estate, shall amount to $1,000.”

Under that section the appraisers had nothing whatever to' do with the real estate, except to appraise the interest of the widow therein, in order to determine the additional amount of personal property to be set off to her. A decree should be entered herein disallowing the claim of the widow to any part of the $101.40, permitting the executor to retain therefrom the amount of the

funeral expenses as set forth in his account; also adjusting the expenses of administration at the amount charged in the account, and adjudging the same to be a valid claim against the estate.


author: Coffin, S.

text:
    In the Matter of the Probate of the Will of James Finn, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed November, 1892.)
    1. Will—Testamentary capacity.
    Where it appears that the testator was not influenced in any way in the drawing of his will, and fully understood the fact of the existence of his wife and children and others who were the objects of his bounty, and the extent of his estate, the mere fact that he gave Ms children but an inconsiderable portion is not sufficient to show want of testamentary capacity.
    2. Same—Mistake as to executor.
    A mistake of testator as to the person nominated as executor will not render the will void.
    Petition for the probate of a decedent’s will, executed while he was a patient in a hospital.
    F. X. Donoghue, for Nathan A. Warren, executor; Joseph F. Daly, for St. Matthew’s Church; Arthur J. Burns, for contestants.
   Coffin, S.

The deceased left a widow, Catharine Finn, and two sons by a former wife, John and James Finn, which sons are the contestants. After a careful consideration of the facts developed by the testimony, the conclusion that the deceased was possessed of a sound and disposing mind when the will was made seems quite irresistible. ' He sent for the attorney to come and draw it. He fully understood- the fact of the existence of his wife, and children, and of others who were made objects of his bounty. The attorney was ignorant on the subject, and received the1 instructions as to the provisions of the will wholly from the deceased, who also stated correctly the amount of his estate, to wit, about $6,000 in money. By the paper propounded he gives to his wife for life the use of the whole. At her death he gives $500 to the children of John and Julia Fox, of Galway, Ireland; to his sister in Ireland, $2,000; to the children of John Finn, of the same place, $1,000; to the children of James Finn, of the same place, $700; to his own sons, $100 each; to -Sister Josephine, for the benefit of St. Matthew’s School, Hastings, $300; for saying of masses for the repose of his soul, $25; and the residue (about $1,275) to Rev. David O’Connor, for the benefit of St. Matthew’s Church, Hastings. However much we might feel disposed to criticise these provisions, and especially those for his own children, yet it- cannot be denied that being competent to make the will, and not subjected to any influence, undue or otherwise, it must be permitted to stand as a final disposition of his estate.

It is claimed that there was a mistake made in the person nominated as executor, and that the will is void for that reason. If such mistake were made, it is not considered that that fact would furnish a sufficient ground for its rejection. It might still be admitted to probate as to the disposing portions, as they are in no way involved, and an administrator with the mil annexed appointed. There were three physicians connected with the hospital, Dr. Warren, Dr. Miles and Dr. Duffy. The latter two attended the patient; whether the first did or not does not appear. After the question as to who should be named as executor had been discussed between the deceased and his lawyer, the testator suggested that “the doctor” be the executor. On being asked the name, he did not recall it, whereupon he was asked if it was Dr. Warren, and he replied that he believed it was, and the proponent’s name was accordingly inserted. Under these circumstances, no sufficient evidence of a mistake in that respect is found. As the court has not been asked to construe the will on the probate, the questions which may arise in regard to the validity of the bequests to the religious and charitable; institutions named in the will must remain undisposed of here until an accounting shall be had. A decree granting probate will be entered.


text:
    In the Matter of the Probate of Porter’s Will.

      (Surrogate’s Court, Westchester County,

      Filed January, 1893.)
    Will—Probate—Service of citation on non-residents.
    Personal service of a citation on non-residents within the State thirty days before the return day is insufficient.
    Petition for the probate of decedent’s will. It appeared that two persons interested in the proceedings were non-residents of the State, and service of citation was ordered to be made either personally without the State or by .publication. The service was made personally, however, within the State, thirty days before return day.
    John F. Lambden, for petitioner.
   Coffin, S.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that, “except where special provision is otherwise made by law, service of a sitation within the State” must be made upon a person at least eight or fifteen days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522, 2524, direct the mode of service upon a non-resident of the State, which is by publication for six weeks, or at the option of the petitioner, by personal service, without the State, at least thirty days before the return day. This case then comes within the exception mentioned in section 2520, and renders a service of the citation in this manner under that section void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a non-resident of the State, and, as none other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is undoubtedly afford the person served time to make his arrangements to attend on the return day. It is his rig’ht, and, residing out of the State, if personal service be made upon him within the State eight, fifteen or thirty days before the return day, it is a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these non-residents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented within the petition, and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication. As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above before the examination of the subscribing witnesses can he proceeded with, this matter must stand over until all of the parties are properly before the court.