In re the Probate of the Will of Beebe — 19 N.Y. St. Rep. 833

Majority

p. 833

In the Matter of the Probate of the Will of Sarah J. Beebe, Deceased.

(Surrogate's Court, Westchester County,

Filed March, 1888.)

Headnote

1. Will—When entitled to probate as.

It is no ground for rejecting a will that its provisions are obscure and difficult of interpretation.

3. Same—What constitutes a will.

The paper oifered as a will read as follows: “ After my mother’s death my cousin, Sallie B. Williams, of 1501 North Tenth street, Philadelphia, Penn., is my heir. This writing is instead of a formal will which I intend to make. Alary Berwick, executrix.” This was signed by the decedent and by two persons as witnesaes. Held, that if the decedent declared it to be her will, and the formalities were observed in the execution thereof, it must be admitted to probate as decedent’s last will and testament. Distinguishing, Ash v. Ash, 10 Jur. (N. 8.), 142.

The paper was propounded for probate as the will of decedent by Mary Berwick, the executrix named therein. It read as follows:

“After my mother’s death, my cousin, Sallie B. Williams, of 1501 North Tenth street, Philadelphia, Penn., is my heir. This writing is instead of a formal will which I intend to make.

“MARY BERWICK, Executrix.

“SABAH J. BEEBE.

‘ ‘ (Witnesses.) Mary Berwick,

“M. J. Berwick,

“Yonkers, N. Y., July 13, 1886.’

The witnesses were not present on the return day of the citation, but a question was raised as to whether the paper was on its face a will. The only heir and next of kin of the decedent was her mother.

J. W. Alexander, for proponent; R. E. Prime, for the mother.

Assuming that the subscribing witnesses can testify to the observance of the statutory requirements essential to the valid execution of a will, among which is a declaration by her that it was her last will and testament, then, I think, it must be regarded as such. The paper itself is exceedingly informal, which she knew, and declared her intention to make a“ formal” one, which intention seems not to have been carried into effect. She does not state that she intended to make any different disposition of her estate.

p. 834

This is unlike the case of Ash v. Ash, 10 Jur. N. S., 142, where the testator said in his will: “I propose to give the residue by codicil, or otherwise to let it devolve as if I had died intestate,” and he left no codicil. He was held not to have disposed' of the residue.

It is no ground for rejecting a will, that its provisions are obscure and difficult of interpretation. But such obscurity and difficulty do not seem to arise here: for, where a man devises lands to his heir, after the death of his wife, though no estate is given to the wife in express terms, she shall have an estate for life by implication. (1 Vent., 376). Probably, had the deceased made a formal will, she would have given her whole estate to her mother for life, with remainder to her cousin. This paper seems to have been drawn and executed provisionally, to stand as her will in case she failed, from any cause, to reduce it to what she regarded as more formal in its character. This she did not do, and, therefore, on proper proof of due. execution being produced, it must be admitted to probate as her last will and testament.