Majority
p. 887Lockwood v. Lockwood et al.[1] (,Supreme Court, General Term, First Deportment. January 28,1889.) Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
Headnote
Wills—Pbobate without the State—Effect to Pass Title to Land.Laws N. Y. 1864, o. 311, as amended by Laws 1872, c. 680, provide that when any real estate in New York is devised by will executed in another state, and admitted to probate and duly recorded therein, an exemplified copy of such will, “ or of such record thereof, and of the proofs, may be recorded in the office of the surrogate of any county in this state where any real estate so devised is situated, which record in said surrogate’s office * * * shall be, in cases where the original cannot be produced, presumptive evidence of said will, and of the due execution thereof ” Seld, that the intention is merely to allow an exemplified copy of a foreign will and the proofs as recorded, where the original cannot be produced, to have the same effect as if the original were produced; and, if such copy and proofs show that the will was not executed and proved as required by the laws of New York, the devise is ineffectual to pass title to land therein.
Appeal from special term, New York county.
The plaintiff, Hiram Lockwood, appeals from an order at special term, denying plaintiff’s motion to compel John O. Baker, respondent, to complete the purchase of lands struck down to him at public auction, April 9, 1888, at the partition sale herein. The purchaser refused to complete the purchase because of defects of title. The court at special term held the objections to the title to be good. 2 H. Y. Supp. 224.
Edwards H. Rockwell, for appellant. Clarence L. Westcott, for respondent.
The objections to the title in question are made because of defects in the execution and probate of the will of one John H. Williams, through whom the title was derived. John H. Williams died in South Carolina, where his will was made, executed, and witnessed by three persons, and admitted to probate, in accordance with the laws of South Carolina; and an exemplified copy thereof was filed and recorded in the surrogate’s office in the county of New York, and certificates of the judge of the court of probate and various lawyers of South Carolina were attached and recorded with the will shown, and that it could not be removed from the records of that state, and hence could not be produced here. Upon the admission of the will to probate in South Carolina, but one witness appeared and was examined as to its execution, and there was no proof either as to the absence of the other witnesses, or of their handwriting, or any secondary proof whatever in reference to said witnesses. There was no proof, nor did the attestation clause state, that any witness signed such will at the request of the testator. It is
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clear that under these circumstances the will was not executed or proven according to the laws of the state of New York. But it is claimed that, in view of the peculiar legislation authorizing the recording of wills admitted to probate in another state or territory, these objections cannot prevail. The law of this state, as it stood when the will was recorded, (Laws 1864, c. 311, as amended by Laws 1872, c. 680,) provides that where any real estate situate in this state has been, or shall hereafter be, devised by any person residing out of this state, and within any other state or territory of the United States, and the will of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of such last will and testament, or of suchreeord thereof, and of the proofs, may be recorded in the office of the surrogate of any county in this state where any real estate so devised is situated; which record in sard surrogate’s office, or-an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will, and of the due execution thereof, in all cases or proceedings relating to lands so devised. The objection made by the plaintiff certainly has some support from the language of th'i§ provision; but in the construction of this portion of the law we must have regard to the intention of the legislature, and the objects sought to be attained. It is apparent what the intention of the legislature was, namely, to allow an exemplified copy of the will and the proofs which have been recorded in another state or territory, where the original could not be produced, to have the same effect as though the original had been so produced. It certainly was not the intention to give greater effect to the exemplified copy of a will and the proofs than would be given to the will itself. If such a construction is to be placed upon this section, then we would have this peculiar condition of circumstances; that a will executed in South Carolina, according to its laws, but not according to the laws of the state of New York, devising real estate in New York, would be effectual because of the law of South Carolina, that a will which is probated must be filed, and cannot be removed from the record for the pul-pose of production in New York; whereas a will made in North Carolina, according to the laws of North Carolina, admitted to probate in North Carolina, but not executed according to the laws of New York, would not be effectual to pass the title to real estate in New York, because the laws of North Carolina authorize the taking of the will off the files for the purpose of probate elsewhere. Such a condition of affairs was never contemplated; and all that was intended by the legislature was that the exemplified copy of the record should be as effectual as the production of the original in those cases where, in consequence of the law of the residence of the testator, the original could not be produced. It was never intended to change the requirements of the laws of this state in regard to the descent of real estate. It is true that the language of the section is that the exemplified copy, in cases where the original cannot be produced, shall be presumptive evidence of the will, and of the d.ue execution thereof. But it is only presumptive evidence; and where, upon an examination of the record itself, it is apparent that the will has not been executed in such a manner as to comply with the laws of this state in reference to the transmission of real estate, the presumption is overcome, and no longer exists. The claim, upon the part of the appellant, that the record is of more value than the original, shows the falsity of the position, and the construction of the section does not necessarily depend upon any such absurd rule.
We are of opinion, therefore,-that, the will not being executed in accordance with the laws of this state so as to pass real estate, no title to the devisee thereunder passed, and the order appealed from should be affirmed, with. $10 costs and disbursements. All concur.