In re the Probate of the Will of Case — 1 N.Y. St. Rep. 152

Majority

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In the matter of the probate of the will of Mary C. Case.

(Surrogates Court, Alleghany County,

October, 1885.)

Headnote

Will—When not properly executed—Where attesting witnesses

SHALL SIGN THEIR NAMES—2 REVISED STATUTES. 63. § 40, SUED. 4.

A will was written upon half a sheet of legal cap paper. The name of testatrix was written at the end of the disposing .part of. the will, written near the bottom of the first page. and immediately fol'owing her signature is the°attestation clause, which covers balance oí Üss6 page and three lines of second page. The three witnesses subscribed tixnr Dames immediately after- An agreement of the devisee and legsSeo, signed by him, follows, and then tos appointment of an executor, and then the testatrix again

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signs her name: Ej¿ld, that the will was not properly executed, as one of the requisites prescribed by the statute for the formal execution of a will— i. e., that the attesting witnesses shall sign their names at the end thereof (3 R. S., 68, §40, subd. 4)—had not been complied with, and probate must be denied.

Henry L. Jones, for petitioner.

Philander B. Case, one of the heirs at law of the deceased, has presented to this court for probate an instrument claiming it to be the will of his mother, Mary C. Case. An inspection of the paper shows that the attesting witnesses did not sign their names at the end of the will as required by subdivision 4 of section 40. 2 B. S., 63. Had nothing more appeared, or been claimed, the surrogate, very properly, might have refused to hear proofs. Matter of Hewitt, 91 N. Y., 261 ; S. C., 3 Abb. Pr. Rep., 58 , below 5 Redf., 271. But it was urged that the instrument was properly executed and attested and made a complete will, then the clauses following the signatures of the witnesses were added and subscribed to by the deceased, after the paper was so witnessed.

The whole instrument is written upon half a sheet of legal cap paper. The name of the testatrix appears at the end of the disposing part of the instrument, written near the bottom of the first page. Immediately following her signature is the attestation clause, which covers the remainder of the first page and three fines of the second page. Immediately following the attestation clause the three witnesses subscribed their names. Then follows:

“The aforesaid Philander B. Case (the devisee and legatee named) hereby agrees to care for and support his father and mother, as heretofore done by his mother, during their natural fife. In attestation of which he hereby signs his name.

“PHILANDER B. CASE.”

“And lastly, I do hereby nominate and appoint my friend, J. P. Dye, to be the executor of this my last will and testament, hereby revoking all former wills made by me.

“MART 0. CASE [her mark x].”

Had this portion of the instrument following the signature of the attesting witnesses been written in point of time after the witnesses had subscribed their names, possibly the first page of this paper could have been admitted to probate if Brady v. McCrossen (5 Redf., 431) be sound law. It is unnecessary to pass upon this point, for it appears that in

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this case the whole of the writing, except the signatures of the testatrix, the subscribing witnesses and Philander B. Case, was made before there was a signing by any person; the matter was canvassed by the witnesses in the presence of the deceased whether the witnesses ought not to write their names on the paper after or below the subscription of the testatrix, and the draftsman remarked that to sign as they were requested would be a good execution.

It is clear to my mind that the deceased intended all of the provisions contained in the paper should make up her will, and that to accept the portion preceding her signature- and rejecting that following it will not accomplish her wishes.

The statute has specifically provided that each of the attesting witnesses shall sign at the end of the will. The first subdivision of the section containing this provision requires the testator to subscribe his name at the end of the will. Under the first subdivision of the section the rule has been rigidly and literally enforced by the courts (see Sisters of Charity v. Kelly, 67 N. Y., 409 ; Matter of O’Neil, 27 Hun, 130 ; aff’d 91 N. Y., 516 ; Matter of Hewitt, 91 id., 261), and no good reason is given why the same rule should not be insisted upon under the fourth subdivision of the section.

Younger v. Duffie ( 94 N. Y., 535 ) is not an authority for holding that this instrument was properly executed. In that case the testator subscribed his name after the attestation clause, and the subscribing witnesses and the notary then signed below his name. The court held that strictly the attestation clause is no part of a will; it is not essential to its validity; but that the testator subscribing his name after it incorporated it in and made it a part of ms will. In that case the statutes were strictly followed : the testator subscribed at the end of the will and the witnesses signed their names at the end of the will.

The reasoning of Judge Earl, In the matter of Hewitt (supra), fully covers this case.

This case is but another practical illustration of the evil results following the attempt made by laymen to give counsel in legal matters of a highly technical character.

Probate must be denied, and a decree will be made accordingly.