In re the Probate of the Last Will of Homes — 32 N.Y. St. Rep. 902

Majority

p. 902

In the Matter of the Probate of the last Will, etc., of George Homes, Deceased.

(Surrogate’s Court, Kings County

Filed July, 1890.)

Headnote

W ills — Probate—Mutilation.

Where the bottom of the first page of a will was cut off, but not so as to destroy its continuity, and it appears that at its execution the will was folded so that the witnesses cannot swear it has been changed since that time, and that it was found among decedent’s private papers in its present condition, and it does not appear to have been disturbed until so found, there is no presumption that it was mutilated after execution.

Proceedings for probate of will.

Arthur Murphy and M. JS. Halpin, for proponent; Croah & Barnard, for contestants.

Upon all the evidence in this proceeding, I do not think the proposition tenable that there is a presumption that the instrument offered for probate was mutilated after execution. No proof has been offered which would warrant any such presumption.

The paper was folded in such a manner that neither of the subscribing witnesses can swear that the paper presented for probate has been mutilated, or changed- in any way since its execution. The will was found among the private papers of the deceased, and does not appear to have been disturbed by any one until found

p. 903

by the executor a day or two after the testator’s death, and, when discovered, was in form as presented for probate.

I think the testator, finding he had made a mistake in writing the will, cut off the bottom of the first page himself before execution, and I am the more convinced of this from the appearance of the document itself. The cutting is ragged and uneven, and no concealment of the fact is attempted that there had been something written on the following line, which, if it had been cut with fraudulent intent, would hardly have been the case.

The first page ends with a perfect sentence, and the next page begins with one, which could hardly happen if the mutilation had taken place subsequent to the execution. “ Where an interlineation, fair upon the face of an instrument, is entirely unexplained, we do not understand that there is any presumption that it was fraudulently made after the execution of the instrument.” Crossman v. Crossman, 95 N. Y., 152 .

It is conceded that the paper, as it stands, disposes of all the real estate of which the testator died possessed. Let decree enter admitting the will presented to probate.