In re Proving the Last Will & Testament of Francis

The testimony was taken in this cause before my predecessor. In deciding the merits of a controversy, a judicial officer who has not heard the testimony, or the oral arguments of counsel, is always at some disadvantage, augmented in this cause by a certain vague and often inconclusive character of the depositions. In order that any invalidity in my conclusions may be the more readily detected by-those concerned, if to-their disadvantage, I deem it my duty to make a brief precis of the facts which I esteem-established on the hearing, as my conclusions -are predicated of such facts.

On the hearing, some objection to the order of proving the papers-presented for probate seems to have'becn taken by the counsel for contestants, it apparently being claimed that proponents must first establish the factum of the will before proceeding to the taking of proofs bearing on the execution of the codicil.' The- late surrogate deemed the order of proof immaterial, and testimony w«is accordingly first offered by proponents bearing on the execution of a paper writing purporting to be a codicil to the will of Isaac Piekford Francis, viz.-:

“I, Isaac Piekford Francis, do hereby make, publish and declare the following as a Codicil to my Last Will and Testament, executed by me on the 25th day of January, 1898.

" First. I hereby revoke the legacy given to Asahel S. Levyj now deceased, in the second paragraph of my said Will, and I hereby appoint Mrs. Jennie Sehenek Whitehouse, daughter of Mr. and Mrs. Franklin Sehenek, of 182 Van Burén'Street, Borough of Brooklyn, City- of Hew York, and Mr,. Walter Lee Crow, son of Mrs. Mary E. Crow, of 13 East 126th Street, Hew York City, to receive the one-third of said remainder which said Asahel S. Levy was appointed to receive by the second paragraph of my said Will, the said one-third to be divided equally between Mrs. JennieSchenclc Whitehouse and Walter Lee Crow, one-half thereof to each.

Second. I hereby appoint my friend, Mr. Walter Lee Crow of 13 East 126th Street, Mew York City, as executor of my Last Will and Testament, and under this my Codicil thereto, in place and stead of William K. O’Brien, who is now deceased.

“All of the other provisions of my said Last Will and Testament, executed by me on the 25th day of January, 1898, I hereby re-affirm, re-publish and again declare to be, together with this Codicil, my Last Will and Testament.

“ In Witness Whereof I have hereunto set my hand and seal this seventeenth day of March, 1899.

“ Isaac P. Francis, [seal]

“ The foregoing instrument was oh the day of the date thereof signed, sealed, published and declared by the above named Isaac Pickford Francis as and to be a Codicil to his Last Will and Testament dated the 25th day of January, 1898,.in our presence and in the presence of each of us, and we in his presence and in the presence of each other, at his request, subscribed our names thereto as witnesses, this attestation clause having first been read over by- each of us.

“ M. E. Merrifield, Continental Hotel, M. Y., M. Y.

“ Frank Dow, Continental Hotel, Mew York, M. Y.”

At the time the codicil was executed it was fastened securely by a tape -to a paper writing, purporting to be the will of Isaac Pickford Francis, the ends of such tape being imbedded in the waxen seal, impressed opposite the signature of Isaac Pickford Francis, the alleged maker of the codicil. The seal on the codicil seems to have been formed by the use of a signet ring, cut as an intaglio and bearing, I think,, the initials I. P. F. That it was an expensive seal is apparent from the impression on the wax, but no testimony was offered to identify the seal. That it was Mr. Francis’s own seal is, I think, evident. But no positive evidence is given as to the time when the seal was affixed to the codicil. The testimony of Mr. Morgan, the lawyer who' prepared the codicil, is to the effect that the will and' codicil were securely fastened together and placed under the same

Were it not for the condition of the paper propounded as a will, hereafter considered by the surrogate, the testimony offered to prove the execution of the codicil is sufficient, prima facie, to establish that writing as a testamentary instrument under the Statute of Wills.' Mr. Merrifield, one of the attesting witnesses to the codicil, is alive and gave testimony in support of the execution of the codicil. The other attesting witness to the codicil, Frank Dow, as it is claimed^ is since deceased. A certificate of the death of Frank Dow, made by the Department of Health, bureau of vital statistics, and sealed, with the seal of the department of health, was allowed by the surrogate to be given in evidence, over an objection that the proponent must first establish the identity of the deceased and the attesting witness. Certainly the legal presumption is that the death.certificate refers to the same person, and the objectors offered no testimony to the contrary.

The question of the regularity of the proof of the death of Mr. Dow is not before me, but I cannot forbear referring

The handwriting of the deceased attesting witness to the codicil was amply proved. Thus we have to prove the codicil, the testimony of the subscribing witness who was alive- at the time of the probate, also the testimony of the lawyer in actual attendance at the execution of the will, and a full certificate of attestation of the codicil signed by Hr. Dow, the deceased attesting witness. .

The testimony of the lawyer (not an attesting witness) who drafted the codicil and was in attendance at the celebration of the formalities required by the Statute of Wills for the formal execution of that instrument was taken before my predecessor without objection of counsel. As an original proposition I might have ventured to think such evidence was competent. The celebration of the formalities .required for the execution of a will I should have taken to he public, and not a private act. The execution of a will is open; and by its very nature it is neither private nor confidential. It is an act in which the State has the supreme

But 'while I must disregard the testimony of the lawyer relating to such execution, as it was taken contrary 'to the existing law, yet I may take notice of his actual presence and avail myself of the established presumption which such presence affords. Had Mr. Morgan not been called to. the stand, his very presence at the execution of the codicil would afford some presumption of its. compliance with the Statute of Wills. Matter of Cottrell, 95 N. Y. 339 ; Worden ,v. Van Gieson, 6 Dem. 238 , 239; Matter of Walker, 67 Misc. Rep. 6 ; Matter of Nelson, 141 N. Y. 152 , 157. So the certificate of attestation being full and complete, sub-signed by the attesting witnesses and attached to the codicil is entitled to be considered as affording a presumption of regularity in the execution of the codicil. Matter of Cottrell, 95 N. Y. 338 , 339; Matter of Balmforth, 60 Misc. Rep. 492 .

‘That the paper propounded as a will and bearing date the 25th day of January, 1898, was originally executed in compliance with the Statute of Wills is, I think, made out in the absence of proof to the contrary. Both of the attesting witnesses were dead at- the time of the offer to probate the will, but their death and their signatures to the certificate of attestation annexed to the will were sufficiently proved on the hearing. The attestation clause or certificate,- stating that all formalities required by the Statute of Wills were- complied with, is under such circumstances -sufficient prima facie evidence that the will was executed in due form. Brinckerhoff v. Remsen, 8 Paige, 488; Matter of Sizer, 129 App. Div, 7 , 10; Matter of Abel, 136 id. 788, 792.

Had the paper called the “ will ” been in the same condition at the time it was offered for probate that it was in when the paper propounded as a codicil was executed, both instruments.would now, for the reasons before stated, be entitled to be probated. But the will was not in its original state when both of such alleged testamentary papers were filed for probate and this cause brought on for hearing. Hence, a question of revocation of the will is presented to the surrogate, together with a contention on the part of the objectors to the probate that, the will being revoked, the codicil has no independent existence, and that standing by itself the codicil is not probative. Such are the real questions which the. surrogate must proceed to consider in this cause.

. In resisting the probate it is competent upon general principles for the objectors to introduce any proof which shows that the papers propounded are not valid and subsisting testamentary instruments. Nelson v. McGiffert, 3 Barb. Ch. 158 . As a will is ambulatory until the death of the tes-tator, it is always subject to revocation until the demise of the intending testator puts a natural end to animus revocandi, which is, in all cases, essential to the act of revocation.

When a paper presented for probate bears upon its face marks which tend to impair it, the apparent infirmity must be considered by the surrogate on the affirmative offer to probate. The alleged testamentary writing is offered subject to such infirmity and, as it is said in such a case, “ the paper speaks 'for itself,” In' Goods of Perry, 4 Motes

We come now to the consideration of the real question in this cause — the revocation of the paper propounded as a will, and its effect on the codicil. At the time the typewritten papers propounded as a will and codicil were filed and offered for probate, such “ will ” was not in the condition it was in when executed, or immediately after execution; nor was it even in the condition it was in when the paper propounded as a codicil was executed. The signature of Isaac Bickford Francis had since then been cut out of the so-called will, with the exception of the first three letters of such name. Blue pencil lines had also been drawn diagonally across the first twelve lines of such paper, begining with the words, “ This is the Last Will and Testament of me, Isaac Bickford Francis of the Oity and County of ¡New York, ¡New York State.” A few words in the body of the alleged will were wholly missing, owing to the excision of the signature on the

The uncontradicted testimony taken at the hearing discloses that after the execution of the codicil the two testamentary papers, united together as stated above, and respectively termed the “ will ” and the “ codicil,” were taken away by Isaac Pickford Francis himself. Thus we have the papers traced into the possession of the testator himself. It is in evidence that they were then intact, uncanceled and unaltered. It seems that a copy of the same was sent to Mrs. Shults, one of the legatees, a fact quite unimportant to the issue. It appears that the original testamentary instruments may have been placed by Mr. Francis -in a blue envelope and sealed five times with his private seal before mentioned. This envelope was indorsed as follows: “ Last Will and Testament of Isaac P. Francis, placed in the care of Mrs. Mary E. Crow of Ho. 13 East 126th St. (Harlem) Hew York City,, by I. P. Francis March 20, 1899.” The handwriting on this envelope was proved to be that of Mr. Francis himself. That the alleged will and codicil were actually contained in the envelope is only presumptive. If they were not, they presumptively remained in the custody of Mr. Francis himself, and this .is the important point. The envelope in question on the death of Mrs. Crow, the depositary, was found in her safe deposit box, sealed - and unopened, and by her son it was handed sealed to Mr. Francis, the maker of the testamentary papers propounded. On the death of Mr. Francis the papers propounded were in any event discovered among his effects, the envelope opened at the end and' the papers themselves in the condition described by the surrogate. In that condition they were filed and propounded as the will and the codicil of Isaac Pickford Francis. There is no other

The testamentary papers presented as a will and codicil for probate, being last in the custody of Mr. Francis-himself, are to be presumed to have been altered by him animo revocando and by no one else. Matter of Hopkins, 172 N. Y. 360 , 363; Matter of Clark, 1 Tuck. 445 , 453, and cases there cited; Matter of Brookman, 11 Misc. Rep. 675 ; Matter of Miller, 51 id. 156. A not dissimilar principle is announced in a late case (Matter of Cunnion, 201 N. Y. 123 , 126).

The English rule, prior at least to the statute, 1 Viet. cap. 37, is consonant with that stated as prevailing here under the present Statute of Wills. In Hare v. Hasmy, etc., Lord Chancellor Eldon said, “According to all principle, if a paper, cancelled" and the seal cut off or name erased is found in a 'fast-locked place of the testator, the prima facie inference from that "is — not that the testator meant it should continue to be his will, but that the testator was the person that did the act himself, which is found to be evidenced by the state of the paper found in his fast-locked closet.” 5 Eng. Ecc. 70. And see Lambell v. Lambell, 3 Hagg. 568; Williams v. Jones, 7 Notes Cas. Ecc. Cts. 106, 111, to the same purport. Is there anything in our present Statute of Wills which alters this presumption or deprives it of force in this cause? I think not.

Such then being the presumption to be applied in the absence of any proof that the alterations in the paper writing propounded as a will were made by any other than Mr. Francis, what then is the legal effect of the changes described 'and to be taken as made by Mr. Francis himself subsequently to the execution of the codicil ?

That some change in his testamentary dispositions was contemplated by Mr. Francis is apparent. Was the change effectual for any purpose under the Statute of Wills?

The present Statute of Wills preserved without great alteration most provisions of the ancient Statute of Wills long in

It seems to the surrogate that under the decisions on the present Statute of Wills of this State the act of Mr. Francis in cutting out his signature from the will of January, 1898, operated as a revocation of that instrument under the existing Statute of Wills. Matter of Miller, 51 Misc. Rep. 156 ; Matter of Clark, 1 Tuck. 445 ; Matter of Brookman, 11 Misc. Rep. 675 . The total'excision of the signature to the xvill by one xvho must, in this cause, be taken to be the testator himself, indicates an intention on his part to revoke the will. Such a conclusion is the only one consistent with a statute xvhich tolerates revocation of a xvill by the testator’s cancellation, obliteration or destruction of the instrument. A cutting out of the signature of the maker of a note by the maker of such note ends the currency of the note. The note can have no further legal inception. Is there any difference ■ in the abstract between such a*xvriting and any other inceptive intsrumpnt, unless the Statute of Wills dictates to the contrary? If there is, it is not apparent to the surrogate. Such being the surrogate’s conclusion on this point it is unnecessary to consider the effect of the blue pencil cancellation and the penciled writing before mentioned.

This question on a similar statute has been most fully considered in the jurisdiction which is the first authentic exemplar of our own, and it is held there that the solution of such questions depends upon the contents of the will and the codicil. If they are necessarily interdependent or so inter-involved as to be incapable of separate existence, the revocation of the will ipso facto 'revokes the codicil, otherwise not. Medlycott v. Assheton, 2 Add. Ecc. 229; Tagart v. Hooper, 1 Curt. Ecc. 289. It would seem to the surrogate that so plain a proposition needs no citation of particular authority. Just as there are-some formules which demonstrate themselves, so there are propositions so evident that their mere statement demonstrates and concludes their truth. I will not pursue further so plain a principle.

But it is urged on me that it has been held by the surrogate for Kings county that a codicil never has an independent existence as a testamentary disposition, and that where a will has been revoked an instrument purporting to be a codicil to such will is not probative. Matter of Nokes, 71 Misc. Rep. 382 . On an examination of that decision I do not find warrant for so extensive an assertion. The learned surrogate for Kings county distinctly states in substance in

That a “ codicil. ” may now, under some circumstances, be separately probated as an independent testamentary instrument under the- existing Statute of Wills of this State, I entertain no doubt. The mere name of “ codicil ” has no deterrent effect on its probative quality. Any writing may be a will if executed pursuant to the Statute of Wills animo .testandi. ' I lately so held in the case of a mere letter, which the exigency of a precarious human existence compelled the testatrix to convert into her will. So any supplemental or posterior writing, if executed pursuant to the Statute of Wills animo testandi> continues to be a codicil. “ Will ” and “ codicil ” are ancient terms of the great system of jurisprudence which is binding in its entirety on the surrogates. The meaning of such terms is to be found in the same body of law, needless at this time, to define in its content or extent. The Statute of Wills contemplates the existence and employment of “ codicils ” (2 R. S. 68, 71, now § 2, Decedent Estate Law) as does the present “ Surrogate’s Law ” (Code Civ. Pro., § 2514, subd. 4). This is in conformity with the old law of wills (1 R. L. of 1813, 364, § 20), embracing the Statute of Wills (32 Hen. VIII) and the Statute of Frauds (29 Car. II), both once in force in Hew York. I find no warrant in the existing law of Hew York for the statement that a testamentary writing, executed pursuant to the Statute of Wills animo testandi, is not independently probative because it is termed a codicil or is in fact a codicil.

This brings us to the remaining question in this cause. Is the codicil here presented for probate so independent of the will, found to be revoked, as to entitle such codicil to probate as an independent, dispositive testamentary paper ? ' This inquiry demands that the surrogate shall look into.thfe contents of the rejected will and the offered codicil, and this the surrogate has power to do before probate, as it is an incident

As Mr. Francis appears from the record to have left grandchildren who are not mentioned in either of the papers pro- - pounded' as his will by those' who, if I do not err on this immaterial point, were strangers in blood, the sentence, which for the reasons stated the surrogate is constrained to pronounce, accords not only with the law but most probably with right.and justice.

Let findings and decree in accordance herewith be presented to me for my signature.

Decreed accordingly.