Collyer v. Collyer

—This proceeding was instituted with a view to proving the last will-and testament of Elizabeth Collyer, deceased, as a lost or destroyed will;..

In no case did equity interfere to mitigate the severity, when any existed, of the rules of positive law (3 Bl. Comm. 55). But, by section 63, 2 R. S. 67, the court of chancery of this State was clothed with power to take proof of the execution of any will of real or personal estate, which was lost or destroyed, and to establish the same, as in case of lost deeds. By the next section, the decree establishing the will was directed to be recorded by the surrogate, and the proper letters to be issued by him, as if the will had been proved before him. By section 67, no will could be allowed to be proved as a lost or destroyed will, unless proved to have been in existence at the time of the death of the testator; or shown to have been fraudulently destroyed in his life-time ; nor unless its provisions should be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.

The Revised Statutes (sec. 40) required that at least two witnesses should subscribe a will of real or personal estate, or both, at the request of the testator ;

These provisions are all contained in the same title of the Revised Statutes which conferred the power upon the court of chancery to take the proof of such wills lost or destroyed. These being positive rules of law regulating the mode and sufficiency of the proof of wills in surrogates’ courts, and none other being prescribed for the court of chancery, the latter was bound by them, as far as practicable, in the cases where jurisdiction was thus conferred upon it. By the act of 1837 (c. 460, § 10), two at least of the witnesses to a will of real or personal estate, if so many were living in the State and of sound mind, were required 'to be produced and examined ; and the death, absence, or insanity of any of them was required to be satisfactorily shown. By a subsequent provision, if all the witnesses were dead, out of the State, &c.," proof might be taken of their handwriting and of that of the testator. Now, by section 2618 of the Code, at least two of the witnesses, in all cases, must be produced and examined before the surrogate, if so many"‘are within the State and competent and able to testify ; by the next section, the absence, death, &c., must be shown by competent proof before dispensing with’ his or their testimony ; and, by section 2620, provision- is made for the proving of the handwriting of any or' all who may be dead, absent from the State, &c.

The jurisdiction conferred by the Revised Statutes upon the court of chancery to prove a lost or destroyed will was, when that court was abolished, devolved upon the supreme court, whose powers on the "subject have been somewhat modified by sections 1861, 1862, and 1863 of the Code. Section 2621 confers upon s.ur

This precise question as to proving a will by one witness when the other is not accounted for, it. would seem, has never before arisen in this State, and the object of the examination of the history of this power, so conferred upon the supreme court, is to show that the factum of a lost or destroyed will must be established in the same manner as if the will itself were produced in court for probate ; that is to say, two, at least, of the subscribing witnesses must be produced, or the non-production of them or of either of them must be satisfactorily accounted for, and then the handwriting, or the fact of their having signed the will as witnesses, must be duly proven by competent testimony. The correctness of this position is sufficiently shown by the following cases. Grant v. Grant, 1 Sandf. Ch. 235 ; Stevens v. Brooks, Clarke, 131; Everitt v. Everitt, 41 Barb. 385 ; Voorhees v. Voorhees, 39 N. Y. 463 ; see also Foster’s Appeal, 87 Penn. 67 ; S. C., 1 Amer. Pro. R. 435, and notes.

In the course of the researches made on the subject, no case has been found, where, in a proceeding to prove a lost or destroyed will, it was held that any proof which fell short of that required by the statute for the proving of a will before the surrogate, would be sufficient to establish it. At least two of the subscribing witnesses must be examined if living and in

The case of Colligan v. McKernan, 2 Dem. 421 , cited by proponent’s counsel as an authority to show that a will may be proved by one witness, &e., is not in point. There the object of the proof was to defeat a will presented for probate by showing that it had been revoked by a subsequent will which was lost. The proceeding was not instituted to prove the lost will.under the statute, and the learned surrogate properly held that one witness, at common law, was sufficient to sustain the objection to the will propounded.

The assistant vice-chancellor in . Grant v. Grant, (supra), says: “ The will is said to ;be lost. But that does 'not affect the requisites to its due execution. Those must be proved as if it Avere present.” So Justice Biiowsr, in the case of Everitt v. Everitt (supra), says:. “If there are witnesses to the execution of the instrument who have subscribed their names as such ■(¿nd without subscribing witnesses, selected by the testator himself, a will has no • force), they must .be produced and examined, if living and within the power of the court. If they be dead or beyond the jurisdiction of the court, secondary evidencé may be resorted to in this contingency, and proof taken of their handwriting.”- ..:

But the proponent has wholly failed in his proof in other respects. He has not shown the will to have been in existence at the time of the death of the testatrix ; nor that it was fraudulently destroyed in her life-time. It is true, he has offered much evidence with a view to establishing one or the other of those facts, but it falls far short of that conclusive character essential to either of those purposes. The declaration of the testatrix to the effect that she had made a will of a certain character, uttered seven months before her decease, does not rebut the presumption of its destruction by her, animo revocandi, arising from the fact that none could be found, after diligent search made soon after her death. Betts v. Jackson, 6 Wend. 173 ; Knapp v. Knapp, 10 N. Y. 276 ; Schultz v. Schultz, 35 Id. 653; Eighmy v. People, 79 Id. 546. Nor does the fact that an opportunity existed for the fraudulent destruction of the will, by those to whose interests it was inimical, overcome the presumption of such destruction by the deceased. There must be evidence furnished, strong enough in its character to warrant the finding of the commission of such fraud by some one. Here none is found to justify such a conclusion.

In-my view of the case, the declarations of the deceased as to the existence of the will, or of its destruction by her, and which were respectively objected to, are.of little consequence, and no careful examination of the authorities cited has been made ; although the better opinion would seem to be that the former are, in this case, admissible, while the latter are not, and the objections thereto are disposed of accordingly. The matter turns upon considerations other than these.

There seems to be still another difficulty in the way of the establishing of this as a lost or destroyed will. Section 1865 («Code Civ. Pro.) requires that the provisions of the will shall be clearly and distinctly proven by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness. This is the same as section 67 of the Revised Statutes (2 R. S. 68 [3 Id. 6 ed.] 70, § 67), above quoted, and is made specially applicable to a proceeding of this character, in a surrogate’s court, by the same section which confers jurisdiction on it to prove such will. In this case, Mr. Parsons produced the draft of the will made by him, which, he substantially testifies, was correctly engrossed by his clerk, and, that, so engrossed, was executed by the decedent. Hence that draft may be treated as a substitute for one of the two witnesses required by the statute. In no other way does he prove the provisions of the will. It is true, they were simple, devising.and bequeathing all her estate, real and personal, to her brother George B. Collyer, the proponent, but that will not warrant the dispensing^ with the one witness which the statute requires beside*

Probate of the alleged will is accordingly refused, with costs to the contestants against the proponent.

Settlement of decree refusing probate.

—On the settlement of the decree in

this matter, counsel for proponent claimed, first, that the proponent was entitled to costs, as matter of right, under subdivision 3 of section 2558 of the Code, and that the court had no discretion on the subject; and second, that only one bill of costs could be allowed to all of the contestants, although they appeared separately and by different attorneys.

As to the first point, I think he is clearly in error. That subdivision applies only to a contestant of a will propounded for probate, and not to a proponent. If a will be offered for probate, and a person, who is named as executor in a prior or subsequent one, contest the one so offered, and seek to have it established, and thus defeat that which he contests, if he fail, acting in good faith, he shall be entitled to costs. That is by no means this case. Here, George B. Collyer is the proponent, and not the contestant of any will. The object of this subdivision is stated in the Commission -

In reference to the second point, it cannot be doubted that the different contestants had a perfect right to employ separate counsel to protect their several interests ; and although they filed no written objections, yet the respective attorneys contested the matter throughput, and with much earnestness and zeal. The proponent commenced the proceeding, solely in his own interest, possessed of no knowledge or evidence of facts to sustain it, trusting, apparently, to chance for their development, in which he failed. He cannot escape the consequences of such risk, by leaving the contestants to pay their own expenses in resisting his.reckless attack upon their rights. The power of granting to, or withholding costs from, several defendants is, as is shown by the authorities cited by proponent’s counsel, discretionary with the court (Hauselt v. Vilmar, 76 N. Y. 630 ).

This seems to be a case where it is eminently proper to charge the costs of each contestant, upon the proponent personally, and it is so ordered.