In re the Probate of Last Will & Testament of Eldred

Majority

p. 777

In the Matter of the Probate of the Last Will and Testament of Eliza D. Eldred, Deceased. Dewitt A. Devoe and Mary Vedder, Appellants; Willard S. Schuyler, as Executor, etc., of Eliza D. Eldred, Deceased, and Others, Respondents.

Third Department,

December, 1905.

Headnote

Will—proof of execution thereof sufficient.

The will offered for probate was holographic and the testatrix herself superintended its execution. It contained no attestation clause. One witness testified to a due and exact compliance by the testatrix with every statutory requirement as to execution, and though admitting on cross-examination that she might be mistaken, said that her testimony was in accordance with her best recollection.

It was shown that this witness was sent across the street by the testatrix to procure the attendance of the other witness; that she told the other witness that the testatrix wished her to witness a paper and added, “it is her will.”' On the probate this second witness testified that the testatrix said, “ I wanted you to sign this paper for me;” that to her best recollection the name of the testatrix was then on the paper; that she did not acknowledge the signature nor declare the paper to be her will, but that when witness asked what the instrument was the testatrix said: *' You know well enough what it is,” for B. (the other witness) “has told you.” On cross-examination she said her memory was very poor.

Held, that the evidence was sufficient to warrant a finding by the surrogate that the execution was in- compliance with the statute.

Due execution is a question of fact, and the statute does not prohibit probate because one of two or more witnesses testifies against the facts necessary to a due execution.

Appeal by Dewitt A. Devoe and another from a decree of the Surrogate’s Court of the county of Fulton, entered in said Surrogate’s Court on the 31st day of August, 1903, admitting to probate an alleged will, dated April 24, 1901, of Eliza D. Eldred.

The. testatrix was a widow and died ¡November 27, 1902, without leaving a descendant. Her only heirs at law and next of kin were one nephew and one niece, the contestants. Her husband died about nine years before her death and after his death she boarded at different places and lived for a part of the time at the Old Ladies’ Home at Mohawk, ¡N". Y. She had. real property valued at about $500, and personal property amounting to about $4,500. On'the

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23d day of April,. 1901, she went to the house of one B. to board for a few weeks. On the day that she arrived there she said to B. that she wanted to make her will. The next day she procured paper - and commenced writing her own will. On the following morning,, April 25, 1901, she completed the-preparation of the will: It was on two pieces of paper and, with the assistance of B., she pasted the two pieces of. paper together. She did not tell B. any-thing about, the contents of her will, but she said that-she wanted' her to Witness it, and she also asked .B. whom she could get. to .sign it with B., and on B.’s suggesting one M. residing across the street the testatrix asked B. to go over and ask M. B. went to M. and told her that the testatrix wanted her to witness a paper and said, “ It is her will,” and they went together to the house where the testatrix ■was. B. had known testatrix all her life; they were school girls together, and the testatrix had known.M. for several years. ! B. testified that on returning to the house the testatrii signed the will in the presence 'of both of them and declared it.to be her will, and asked them to sign as witnesses and that both signed it as.witnesses-in the presence of the testatrix.and.in the presence of each, other. This testimony is clear and positive.. On the cross-examination, however, B. said that she might be mistakeD'in her testimony,- but that it was in -accordance with her best recollection as to- what occurred. • ■ '

M. testified as to B.’s asking her to go over to the house and sign a paper1 for the testatrix and that B. told her that it was the testatrix’s will. She- says that when she went to the housé where the testatrix was that testatrix said,- “ I wanted you to sign this paper-for me;”' that her best recollection is that testatrix’s name was - then on the paper, and she says that the testatrix held her fingers over the written part of -the will, and that she-jokingly said to tes^ tatrix something about signing a paper when-she did not know what it was, and that the testatrix-said, “ you know well enough what it is,.’’ for B. “ has told you ; ” that' the testatrix did not sign the paper in her presence or acknowledge the signature or declare the paper'to be her will, but that she signed the will at the request Of the, testatrix. On her cross-examination she says that her memory, is.very poor and that all she means by her testimony is that she has nó recollection of seeing, testatrix" sign the will or that the testatrix in her

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presence declared it to be her will. Upon this testimony the will was admitted to probate, and from the decree admitting it to probate this appeal' is taken.

The will, which is wholly written by the testatrix, gives several specific articles and small money legacies to persons named therein, including $500 each to two grandnephews,; $1,000 to the Aged Baptist Ministers’ Home of Fenton, Mich.; $2,000 to the Old Ladies’ Home at Mohawk, and it makes, said Old Ladies’ Home at Mohawk the residuary legatee. ■

The will did not have an attestation clause.

E. E. Sheldon, for the appellant Mary Vedder.

S. H. Newberry, for the appellant DeWitt A. Devoe.

James D. Rogers, for the proponent, respondent.

J. B. Rafter, for the respondent Old Ladies’ Home.

B. D. Smith, special guardian, for the respondent Carl Lyon Devoe.

Ho evidence was offered that in any way attacks the competency of the testatrix to make a testamentary disposition of her property. It is quite evident from the record that she intentionally planned to prepáre and execute her will at the house of a friend who was wholly disinterested in the transaction. The will was prepared, not only without any one knowing its contents, but without its contents being in any way the subject of conversation. The paper thus prepared by the testatrix commences: “ I, Eliza D. Eldred, of Dolgeville in the county of Herkimer, State of Hew York, do declare this to be my last will and testament.” Following this statement its provisions are testamentary and sufficiently clear for the purpose of disposing of all of her property. There is no suggestion in the record of any undue influence having been exerted on behalf of the legatees named in the will. There are no suspicious circumstances surrounding its preparation and execution, and no fraud was practiced On the testatrix or by her in the transaction. While the fact that the will was prepared by the testatrix does not dispense with substantial compliance with the statutory requirements (2 R. S. 63, § 40), relating to its execution, the fact that the will is holographic

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shows that the testatrix understood its contents'and that it expresses her wishes, and the necessity for exercising great care in considering testimony relating to the execution 'of a will does not exist in.this case to the same, extent as in many others; (Matter of Beckett, 103 N. Y. 167 ; Matter of Turell, 166 id. 330 ; Matter of Akers, 74 App. Div. 464 .) The testimony of B. shows a due and exact compliance by the testatrix with every statutory requirement; that she Was less positive on her cross-examination than she was on her direct examination only goes to the weight of her testimony. Tim testimony of M. must" be considered in connection with her own statement that her memory is very poor.

There is no dispute about the paper having beén signed at the end thereof by the testatrix, and it is in' fact a statement of her wishes in regard to' the disposition of her property. -It is the duty of the court to carry into effect her wishes and intentions unless the paper was not executed in compliance with statutory requirements. . __

. Whether the will was. executed in accordance with the statutory requirements is a question • of fact. (Matter of Turell, supra; Matter of Cottrell, 95 N. Y. 329 ; Matter of Elmer, 88 Hum, 290 ; Matter of Cornell, 89 App. Div. 412 .; Matter of Hardenburg, 85 Hun, 580 ; Matter of de Haas, 19 App. Div. 266 .) It 'is not the purpose of the statute to 'prohibit the probate of a will simply •because one of two or more witnesses thereto willfully or otherwise testifies against the facts necessary to constitute a due execution thereof. (Code Civ. Proc. § 2620.)

The surrogate, who must be satisfied of the genuineness of the will and pbe validity of its execution before admitting it to probate (Code Civ. Proc. § 2622), has’ found that-the testatrix signed the will in: the presence of the subscribing witnesses, and that she declared to them that it was her will He resides, in the county where the parties and witnesses in this ' proceeding reside, and before whom the witnesses appeared and gave their testimony. We see no reason for this court reversing such' findings or the debree admitting the will to probate. " The decree Of the surrogate should be affirmed, with costs. . • '

Decree of surrogate unanimously affirmed, with costs.

Cases cited

In re Probate of the last Will of Beckett 103 N. Y. 167 N.Y. 1886-10-05 p. 780
In re the Probate of the last Will & Testament of Cottrell 95 N. Y. 329 N.Y. 1884-03-21 p. 780
In re Cornell's Will 89 App. Div. 412 N.Y. App. Div. 1903-12-30 p. 780
In re De Haas' Will 19 App. Div. 266 N.Y. App. Div. 1897-06-25 p. 780