In re the Application for Probate of the Will of Ruser — 19 N.Y. St. Rep. 791

Majority

p. 791

In the Matter of the Application for Probate of the Will of Charles Ruser, Deceased.

(Surrogate's Court, Westchester County,

Filed January, 1888.)

Headnote

1. Lost will—Peoof of under Code Civil Peo., §§ 1865, 2631.

The provision of Code Civil Procedure, §§ 1865, 2621, which requires that a lost or destroyed will should not be admitted to probate unless, “its provisions are clearly and distinctly proved by at least two credible witnesses,” is not complied with unless the witnesses are able to testify to all of the disposing parts of the will. It will not suffice to prove one provision by two or more -witnesses, and another provision in the same way by other witnesses, nor can the proven declaration of its contents by the testator be regarded as of any weight in establishing the will. The evidence of a witness whom it is proved has not read the whole of the will or otherwise knew of its provisions is without value.

2. Same—Effect of consent of counsel.

A lost will cannot be admitted to probate upon the agreement of counsel as to its contents, although its due execution be established.

Wilhelmina Abel, widow of the deceased, who had remarried since his death, made this application to prove the will of the deceased which was lost. The testator died about 1876. The due execution of the will was proved by the subscribing witnesses and its existence at the time of the testator’s death and its subsequent loss was shown. The lawyer who drew the will which was a short one could not remember the contents, except that the whole estate was given to the wife absolutely or for life, with remainder to his children. He thought it was absolutely. One E. testified that he had seen the will but had not read the whole of it. The hrother-in-law of the testator testified that after his death he saw the will but did not read all of it, only so far as to see that the estate was given to the wife for life. Another witness testified to a conversation with the deceased in which the deceased said he had left all of his property to his wife for life and at her death it was to go to the children.

Joseph S. W., for proponent; Charles F. Irwin, for Charles R. Ruser, next of kin.

This court has power to admit to probate a lost or destroyed will, but it cannot exercise such power unless “ its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.” Code, §§ 1865, 2621. In this case the execution of the will, and its existence since the death of the alleged testator, have been sufficiently established, and the only question for consideration is, whether the contents have been proven in such a manner as to satisfy the requirements of the statute. That the rule is strict and technical, furnishes no reason for relaxing it. It was enacted for a wise purpose. If it .may be departed from at

p. 792

all, it would, thow open the door to much abuse and lead to great injustice in many cases.

Where no correct copy or draft, duly verified to he such, is produced, then the provisions of the will must be clearly and distinctly proven by each of two or more credible witnesses. It will not suffice to prove one provision by two ox-more witnesses, and another provision, in the same way, by others; but each of the witnesses must be able to testify to all of the disposing parts of the will. Nor can the proven declaration of its contexits by the testator be regarded as of any weight in establishing the will. It was so held in the case of Collyer v. Collyer, 4 Dem., 53 .

None of the witnesses, who saw the will in this instance,, are able to state, clearly and distinctly, its provisions. Mr. McClellan, a careful lawyer, who drew the will, says it either gave the whole estate to the wife absolutely, or xt gave it to her for life with remainder to his children, he cannot say which, hut, he thinks the former. This lacks the elements of clearness and distinctness which the statute exacts, and, therefore, he will not answer the purpose of one of the two requisite witnesses. Two other witnesses, who saw the will, testified that they did not read the whole of it. One says he read far enough to see that the deceased left the property to his wife, or something to that effect, while the other says he read it only so far as to see that the estate was given to the wife for life.

Aside from any consideration of the statute, it would he impossible, from this testimony, to determine with any degree of accuracy, what were the provisions of the will; whether it gave the estate to the widow absolutely, or for life or widowhood, and then to the children in equal shares. But as neither of these witness.es read the whole will, or otherwise knew all its provisions, their testimony is of no appreciable value; and as the statute does not provide that the declarations of the testator shall be received as an element in the evidence necessary, or competent, to establish a lost will, such evidence must he disregarded.

A stipulation, signed by counsel for the respective parties, is presented, by which, among other things, it was agreed that all of the estate was devised and bequeathed to the widow for life, with remainder to his children. In regard to this, it is sufficient to say that a lost will cannot be admitted to probate upon the agreement of counsel. If it could, then, by a like agreement, an existing will could be so admitted without the examination of any witnesses whatever. This court must be controlled, in its action, by the evidence the statute requires.

For these reasons, probate of the alleged will is refused.