In re Foley's Will

[1] The contest over the probate in this matter turns upon a single fact. After the will had been read over to her and the testatrix had affixed her mark to the paper propounded, but before the attesting witnesses had subsigned it, one of the attesting witnesses, who was also the lawyer who had! prepared the testamentary paper for execution, filled up some blanks in the testimonium clause of the testamentary paper, at the same time writing about the mark of testatrix her name, thus “Annie F. Foley X her mark.” The blanks filled by the lawyer after the act of subscription of the will by the testatrix were the words italicized in the following clause:

“In witness whereof I have hereunto subscribed my name and affixed my seal at No. SOI Lenox avenue, in the Borough of Manhattan, City of New •York, this twenty-eighth day of September, one thousand nine hundred and eleven, in the presence of Anthony F. Cassidy and Frederick J. Fuller whom I have requested to become attesting witnesses thereto.”

The only question on the paper propounded is, What is the effect of the lawyer’s filling in the blanks in the testimonium clause of the will, after the testatrix had subscribed the same, but before her act of publication or declaration of such will, and before rogatio testium, or her formal request to the attesting witnesses to act as such, and before the several subsignations of the witnesses in conformity with rogatio testium? Counsel concede that they find no authority precisely in point. The surrogate has therefore felt obliged to examine at length the matter for himself.

It would be, I think, dangerous to hold at large that after a testátor has made the subscription to his will, which subscription is by the statute of wills now in force required to be at the end thereof, another than intending testator or even intending testator himself might in any case write words, with testamentary or dispositive effect, above the subscription and into the body of a testamentary paper. It happens in this matter before me that the words thus written into the instrument were inconsequential and trifling, but, had they been dispositive words of import, the principle concerning the legal effect of such an act would be the same. What does the statute of wills now mean when it commands that every last will and testament shall be subscribed by the testator at the end of the will ? Decedent Estate Law (Consol. Laws 1909, c. 13) § 21. Does it mean the physical end, or the logical end? Can it in either event be said that a testator subscribed at the end of a will, when something afterwards is overwritten ?

There are various arguments bearing on the question in this cause: The entire session held for the celebration of the will may be regarded as unitas actus—i. e., as a single act—and in this event the precise order of the things specified by the statute as essential to the testamentary act may be disregarded, provided each and all of the requirements of the statute are performed at the same session held for executing the will. Doe v. Roe, 2 Barb. 200 , 205. In the absence of

[2] While it is true that the courts of this state will presume in some cases, in the absence of proof to the contrary, that thé order prescribed for the celebration, or execution, of a will has been rightly pursued (Jackson v. Jackson, 39 N. Y. 159 ; Matter of Pepoon, 91 N. Y. 255 ), yet the construction accorded by such courts to the present statute of wills never ignores the order in which the several requirements of the statute shall be performed, when such order is established as a. fact. The established construction does not in effect sanction the theory that it is optional with the actors in an act of testamentation to perform such things as the statute prescribes in any order such actors may choose to perform them. Jackson v. Jackson, 39 N. Y. 163 ; Sisters of Charity v. Kelly, 67 N. Y. 409 , 413; Matter of Hewitt, 91 N. Y. 261 , 263. In this state under the present statute of wills, animus testandi on the part of the testator is insufficient to establish a will, where it is proved that there has been a noncompliance with the directions of the statute upon the part of either the testator or of the attesting witnesses. Matter of Kivlin, 37 Misc. Rep. 187 , 74 N. Y. Supp. 937 ; Matter of Andrews, 162 N. Y. 1 , 5, 56 N. E. 529 , 48 L. R. A. 662 , 76 Am. St. Rep. 294 .

[3] But there is another argument on the precise question before me, and one more consistent with authority. Venia testandi, or the privilege or right of making a will, is at the present day referable wholly to a statute of this state, and it is necessary to show a compliance with such statute upon any proceeding to probate a testamentary paper in the courts of the state. Arguments, founded on general doctrines of probate law or on the older statutes of wills, have little bearing on the portion of the statute now regulating in detail the formalities requisite for the valid act of testamentation. If the formalities now laid down in the statute had not been deemed essential to the act of making a will, the Legislature would not have prescribed them. Matter of Andrews, 162 N. Y. 1 , 5, 56 N. E. 529 , 48 L. R. A. 662 , 76 Am. St. Rep. 294 ; Matter of Hewitt, 91 N. Y. 261 , 263. The requirements of the statute of wills are highly peculiar. This statute stands in some respects only in the same category with such enactments as the statute of frauds and its prototype, the French Ordonnance de Moulins of the year 1566. These enactments nevertheless required in almost every instance a substantial compliance with the directions prescribed. But the statute of wills refers to a unilateral act only. Without adherence in every respect to the directions prescribed by statute, a unilateral act of a party may have no validity whatever. When a unilateral act is of a quasi public character, and a will is such, the state universally prescribes with particularity the formalities requisite for the authentication or validity of the act itself. The reason why the requirements of the statute of wills demand implicit obedience is that, as an act of testamentation is unilateral and to take effect after the death of the chief actor, it is peculiarly exposed to fraud, simulation, or even forgery. Therefore it is that for the

[4] The first question I shall consider is, Did the testatrix in this matter subscribe the will “at the end” thereof within the trúe meaning of the statute, if after such subscription something was overwritten, and not subscribed by her? It would seem to me that she did not sign at the end thereof so as to include in its operation the words thereafter overwritten. I am aware that it has been intimated that the words, “the end of the will,” refer to place, and not. to time. Hewitt v. Hewitt, 5 Redf. Sur. 271.. But such an intimation is rather argumentative than controlling. It is not consistent with the adjudications. The end of the will has been held to mean the logical, and not the physical, end. In this state what is termed the logical end in England has been termed the “intellectual or speaking end.” But both expressions or terms denote the end contrasted with the “physical endl.” Matter of John Tonneles’ Will, 5 N. Y. Leg. Obs. 254 ; Matter of Walton, L. R. (3 Prob. & Div.) 159; Matter of Stoakes, 23 Wkly. Rep. 62. The logical end must, in the nature of things,-- include time as well as space. If we give another construction to the words, “end of the will,” than the physical end, as we must do under the authorities, we are at liberty to include both time and space in arriving at the logical end. The term “logical end,” which is a term of art, under the authorities necessarily connotes both time and space. When something is written in after the testator’s subscription, the testator has certainly not signed at the logical end of the will, although he may have signed at the physical end. It is quite unnecessary to review the authorities of this state bearing on the meaning of the words “end of the will,” for none of such decisions goes to the exact point presented here. They generally turn upon an issue of fact, viz., did or did not a particular testator subscribe the will- under consideration at the physical end thereof.

[5] It is claimed before me that the subsequent acknowledgment by testatrix of her prior subscription and her subsequent publication of the will have the legal effect of including the words written in the paper after such prior subscription. This seems to the surrogate a fallacy and to be a dangerous doctrine and one he is unwilling to subscribe to until advised by higher authority. In the first place, the publication or declaration made subsequently to subscrip

Under similar circumstances it has been held that subsequent acknowledgments of prior subscriptions are not the equivalent of subscriptions. Nor is passing a dry pen in the presence of witnesses over a subscription made prior to such presence a -subscription within a not dissimilar statute of wills. Casement v. Fulton, 5 Moo. P. C. 130; Kevil v. Lynch, 1 I. R. (8 Eq.) 244. In Casement v. Fulton the point came before the Privy Council on an appeal from India, involving the “Indian Will Act of 1838,” copied from the English act (St. 1 Vict. c. 26). The Privy Council held that, where a Wills Act required a subscription in the presence of witnesses, an acknowledgment of a prior subscription was not the equivalent of actual subscription. But, independently of any foreign authority on a different statute, I feel constrained to hold in this case that testatrix’s acknowledgment of her subscription did not serve to incorporate in the will the words written in the body of the will after the subscription. The point is that such words so overwritten were never subscribed by testatrix. It is true that the statute of wills does provide for either a subscription in the presence of the attesting witnesses or an acknowledgment by testator of such subscription. Decedent Estate Law, § 21; Matter of Mackay, 110 N. Y. 611 , 18 N. E. 433 , 1 L. R. A. 491 , 6 Am. St. Rep. 409 ; Matter of Laudy, 148 N. Y. 403 , 407, 42 N. E. 1061 ; Matter of Abercrombie, 24 App. Div. 407 , 48 N. Y. Supp. 414 ; Matter of Turell, 47 App. Div. 560 , 565, 62 N. Y. Supp. 1053 . But it does not and cannot provide for an acknowledgement of that which is not a subscription in fact. This may seem casuistry, but it is not. It goes to the very essence of the execution.

Yet as every statute must have a reasonable interpretation, if in point of fact there has been in this cause a substantial compliance with the statute of wills on the part of testator and the subscribing witnesses, the execution of the will in the manner detailed in the evidence ought to suffice for some purposes. Matter of Voorhis, 125 N. Y. 765 , 767, 26 N. E. 935 ; Matter of Hunt, 110 N. Y. 278 , 281, 18 N. E. 106 ; Lane v. Lane, 95 N. Y. 494 , 499. But this is a different assertion from one that a noncompliance is ever a substantial compliance. The doctrines relating to substantial compliance have no reference to an established noncompliance with the statute of wills.

[6] That the testatrix did in fact subscribe the paper propounded as it existed prior to the alterations written over her signature is es

One of the judicial obligations of every court of probate is to identify and determine the constituents of the testamentary instrument or scripts propounded. The probate proceeding being in rem, the surrogate must determine, in disputed causes in the first instance, what writings constitute the will and are proceeded on for probate. He is bound to refuse probate to such parts of a paper propounded as have not been executed in conformity with the statute of wills, and he may admit to probate such parts as are well and duly executed if separable and integral or independent. Burger v. Hill, 1 Bradf. Sur. 360, 373; Matter of Welsh, 1 Redf. Sur. 238; Matter of Gibson, 128 App. Div. 769 , 113 N. Y. Supp. 266 ; Matter of Janes, 87 Hun, 57 , 33 N. Y. Supp. 968 ; affirmed 152 N. Y. 647 , 46 N. E. 1148 . This was the established rule of law in the probate jurisdictions which preceded the Revised Statutes. Nothing has since transpired to change the rule.

The contestants having rested their entire case on the irregularity mentioned at the outset, it is apparent from the evidence that the script propounded, in so far as it was actually subscribed by testatrix, is entitled to be probated. The words written over the subscription, after the testatrix had subscribed the will, are not entitled to probate. Let the findings and the decree herein provide accordingly.

Decreed accordingly.