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In re Ellery

139 A.D. 244 Court Second Department, Decision date 1910-06-24 English

Delivered by Jenks, J.:

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In the Matter of the Application of Amelia Ellery, a Person Interested in the Estate of Eliza Battanchon, Deceased, Appellant, to Revoke the Probate of Her Alleged Last Will and Testament. Charles F. F. Battanchon, Respondent.
Second Department,
June 24, 1910.

Headnote

Will — holographic will—death of subscribing witness — lack" of attestation clause — proof of publication—probate.
Although in admitting a holographic will to probate the requirements as to publication are not so strictly enforced as in the cáse of other wills, still some substantial compliance with the prescribed formalities must be shown.
While an attestation clause is not necessary for the proof of a will, yet where the subscribing witnesses are dead its absence makes against the proponent.
A clause at the end of a holographic will which states that it was “ sworn and described” before a notary on a certain date in the presence of two witnesses who signed their names and which is also signed by the notary who affixed his . seal, does not take the place of a formal attestation clause.
A holographic will which lacks a formal attestation clause and -the subscribing . witnesses to which-are dead, should not be admitted' to probate under section 2630 of the Code,of Civil Procedure merely on proof of the handwriting of the testatrix and of the witnesses and of the fact that the testatrix at one time, in
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the absence of the sole devisee and legatee, spoke to a friend' with reference to a will, for such facts would not be sufficient to prove the will on the trial of an action.
This, although the inference could be drawn that the will made a natural and reasonable disposition of the estate.
Appeal by Amelia Ellery from an order of the Surrogate’s Court of Richmond county, entered in said Surrogate’s Court on the 30th day of March, 1910.
Howard Thayer Kingsbury [Benjamin F. Tracy with him on the brief], for the appellant.
J. Harry Tiernan, for the respondent.

This is an appeal from the order of a Surrogate’s Court that denies a petition for the revocation of the probate of Battanchon’s will and ratifies and confirms the decree of probate thereof. The subscribing witnesses died before the testator, and, therefore, it was sought to establish the will under section 2620 of the Code of Civil Procedure by “ 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.” After a hearing upon the petition the learned surrogate found that the instrument was signed, by the testator, at the end thereof, in the presence-of James Howard and George M. Fleischer, the subscribing witnesses thereto, and was also signed at the end thereof by the said James Howard and George M. Fleischer; that the said Howard and Fleischer died before the testator; that the body of the said instrument, and the name Eliza Battanclion subscribed thereto, are in the genuine handwriting of the deceased ; that the names James Howard and George M. Fleischer, subscribed thereto, are in the genuine handwriting of said James Howard and George M. Fleischer, and thereupon concluded that the instrument was properly executed, and is genuine and valid as a will of real and personal property and in conformity with the provisions of the statute.

The evidence is sufficient to justify the findings of fact, but I think that the facts do not justify the conclusion of law because

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there .was not- sufficient proof of “ such other circumstances.” The fact that the will is a holograph does not except it from the -terms of the statutory requirements of execution. Although there is less strictness in the case of a holographic will, it must appear that there was some substantial compliance with the prescribed formalities of publication. (Matter of Turell, 166 N. Y. 330 , 336; Matter of Beckett, 103 id. 167, 174; Matter of Moore, 109 App. Div. 762 , 765; affd., 187 N.Y. 573 .) This relaxation is permitted because the holographic character of an instrument shows that a testator understood the character and contents of it, and hence “ the'primary and principal purpose ” of publication is “ nearly secured.” (Matter of Beckett, supra.)

The question under section 2620 of the Code is whether upon the whole evidence a jury might infer such' compliance. (Matter of Briggs, 47 App. Div. 47 , 50.) There is no full and formal attestation clause. After the subscription by the testator there is written, “ Sworn and described before me this 5th day of June, 1900, Gr. M. Fleischer, Notary Public, County of Bichmond. In presence of Gr. M.'Fleischer, James Howard,” and the notarial seal is attached. It appears that the notary public was a dealer in furniture. It may be that “ described ” was intended for '“ subscribed,” but if not, that word does not fulfill the requirements of' a formal attestation clause. It is true that such a clause was not essential. And G. M. Fleischer and James Howard must be regarded ,as subscribing witnesses, for the legend “ In presence of ” is a statement -of function of such a witness. Professor Wigmore, in his work on Evidence (§ 15.09), writes that “ the statement [of attestation] need not be expressly written in full, the placing of the signature implies an assertion of execution.” (§§ 1509, 1512. See, too, Losee v. Losee, 2 Hill, 612 ; Ela v. Edwards, 16 Gray, 91 ; Eliot v. Eliot, 10 Allen, 357 .) But the absence of a full and formal attestation clause makes against the proponent. In Jackson v. Jackson ( 39 N. Y. 159 ) the court, per W oodruff, J., say: “Asa memorandum of what occurred, and as a means of securing the attention of the witnesses to the fact that all required formalities have been observed, it is very desirable- that it should be full and precise in its details. Sometimes, when the witnesses are dead, it may be of great importance as presumptive evidencé of due execution. But the attestation clause is no part of

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the will, and is not required as a part of its due execution by any law. [Chaffee v. Baptist Miss. Convention, 10 Paige, 85 ; Leaycraft v. Simmons, 3 Bradf. 35 ; Jackson v. Christman, 4 Wend. 282 .]” (See, too, Matter of Cottrell, 95 N. Y. 329 ; Rider v. Legg, 51 Barb. 260 ; Everitt v. Everitt, 41 id. 385 ; Matter of Briggs, supra.) In Matter of Abel ( 136 App. Div. 788 ) we have said, per Carr, J., that the existence of such a clause is a circumstance that permits a very strong inference of execution, and our courts in cases somewhat similar to this at bar, have laid stress upon the existence thereof. In Matter of Hesdra ( 119 N. Y. 617 ) the court say: “ This.section received a practical construction in Brown v. Clark ( 77 N. Y. 369 ); Matter of Pepoon (91 id. 255) and Matter of Cottrell (95 id. 329), and was held to mean, in accordance with prior"decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of a will.” (See, too, authorities, supra; Brown v. Clark, 77 N. Y. 369 ; Matter of Pepoon, 91 id. 255; Matter of Kellum, 52 id, 517.) Outside of the proof of the handwritings, the only further proof is that the testator, in her home, and in the absence of her husband, conversed with her friend Ferrand “ with reference to a will,”- but the time is not told, the details of the conversation are not given, and it does not appear that the will referred to was that of the testator. The sole devisee and legatee is the husband of the testator, and in the event of his decease the mother of the testator, while it does not appear that the testator had any other natural objects for her provision nearer than her sisters. These circumstances make for the proponents. (Matter of Hesdra, supra.)

To affirm this order we must hold that a jury would be warranted in finding the publication' of a holographic will without a formal attestation clause, when the handwriting of the testator and of the subscribing witness was established and there was proof that the testator at some time in the absence of the sole devisee and legatee spoke to a friend with reference to. a will, and the inference could be drawn that the will made a natural and reasonable disposition of the testator’s estate. Examination of other judgments in this State, wherein similar questions arose and were disposed of, fails to show

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any case where so informal a document, upon such paucity of proof, was-held to. be established under this statute or similar statutes.

The order is reversed, with costs, and a new hearing is ordered before the surrogate.

Woodward, Burr and .Thomas, JJ., concurred; Carr, J., concurred on the ground that the surrogate has made no finding that there was. a publication of the instrument.

Cider of -the Surrogate’s Court of Richmond county reversed, with ten. dollars costs and disbursement's, and new hearing ordered before the surrogate.

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