In re Bearns

Headnote

Matter of Bearns, 170 App. Div. —, affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate the will of Joseph H. Bearns, deceased. The contestant contended that the instrument offered for probate as the will of the decedent shows on its face that it was

not intended as a will, "but that it was intended to accomplish a republication of a will and of four codicils made at various times during the preceding six years; that this intention was clearly expressed in language which had a precise and definite meaning in the law; that the context of the instrument is consistent with and confirms tins meaning; that extrinsic evidence of any other intention was, therefore, incompetent; that since it was apparent, upon a mere inspection of the papers, that republication could not be effectually accomplished in the manner adopted, the oral testimony of witnesses as to what was said or done when the instrument was executed was either immaterial or incompetent — immaterial if offered to show what was done in a vain attempt to republish, and incompetent if offered to show an attempt to make a will de nova. He further contended that if the instrument was intended as a will, nevertheless its physical arrangement was such that it was impossible to authenticate it by a single signature at the end within the intent of the statute — in other words, that it was impossible to make a valid will in this form under our statute. He also contended that the copies of the original will and codicils could not be incorporated in the instrument of August 31, 1914, even if the latter be regarded as a valid will.