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In re Wilmerding's Will

135 N.Y.S. 516 Court N.Y. Sur. Ct. English

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p. 516
(75 Misc. Rep. 432.)
In re WILMERDING’S WILL.
(Surrogate’s Court, New York County.
January, 1912.)

Headnote

Wills (§ 133*)—Requisites of Attestation and Publication.
Probate of a holographic will will he refused where both of the subscribing witnesses swear positively that there was no publication of the instrument, and that they did not know that it was a will until long after they had signed it.
[Ed. Note.—Eor other cases, see Wills, Cent. Dig. §§ 342-344; Dec. Dig. § 133.*]
«Eor other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, Sc, Rep’r Indexes
Petition for the probate of a holographic will of John C. Wilmer-ding, Jr., deceased. Denied.
p. 517
Gay & Goddard, for petitioner.
Wales F. Severance (Maurice Deiches, of counsel), for legatee Gordon.

There being some difficulty in the proof of this will in the ordinary or common form before the clerk, I directed the proofs .to be retaken before me. The will is a holograph. Holographic testaments are doubtless favored in probate law. In the civil law even the signature of the testator to a holograph was dispensed with. C. 6, 23, 21, pr. Under our old law, prior to the last century, if it were certain that a testament was written or subscribed by the testator, the testimony of witnesses was unnecessary. Swinb. 639; Gilb. Rep. 260. But since our present statute of wills, while the evidence of publication of a holographic testament may be somewhat relaxed, nevertheless a substantial compliance with the statute is essential; and both publication and rogatio testium, or a request to the witnesses to act as attesting witnesses, must be made out in some way to entitle such a testamentary paper to probate as a will. Matter of Phillips, 98 N. Y. 267 ; Matter of Beckett, 103 N. Y. 167 , 8 N. E. 506 ; Matter of Hunt, 110 N. Y. 278 , 281, 18 N. E. 106 ; Matter of Turell, 166 N. Y. 330 , 59 N. E. 910 ; Matter of Moore, 109 App. Div. 762 , 765, 96 N. Y. Supp. 729 , affirmed 187 N. Y. 573 , 80 N. E. 1114 .

In this case both of the witnesses to the will of Mr. Wilmerding swear positively that there was no publication by the testator, and neither witness knew that the-instrument which he subsigned was a will until long subsequently to the disruption of the session during which they so subsigned. As was intimated in substance in Matter of Moore, supra, it would be a dangerous practice to permit even a meritorious holograph to be established in defiance of the positive testimony of those who are the chief actors in a quasi public function. Such a precedent would be dangerous in the extreme, as it would tend to nullify the statute of wills. There is in this cause now before me no resemblance to the latest case which I find reported on this subject. Matter of Marley, 140 App. Div. 823 , 125 N. Y. Supp. 886 .

I am constrained to refuse probate to the paper propounded. Settle decree accordingly.

Probate denied.

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