In re the Proving the Last Will & Testament of Conway

James Conway, wbo resided in Wyoming county, died on tbe 3d day of April, 1889, leaving a widow and six children, all of full age. Three of tbe children contested the will upon tbe ground that it was not properly executed. It came on for a bearing in Warsaw on tbe 8th of July, 1889, before the surrogate, Hon. ByeoN Healy. After bearing tbe evidence the surrogate made tbe following findings:

“That on tbe 14thday of April, 1886, James Conway, Sr., being a resident of tbe town of Genesee Falls, in tbe county of Wyoming and State of New York, at said town madé, and subscribed at tbe end thereof, bis last will ■ and testament in writing; that said subscription was made by the said James Conway, tbe testator, in tbe presence of two attesting witnesses, each of whom signed bis name at tbe end of said will, at the request of the said testator; that tbe said testator, at tbe time of making such subscription, declared tbe instrument so subscribed by him to be bis last will and testament; that tbe said witnesses to said will'wrote opposite to their names their respective places of residence; that it appears from the proofs of said will taken, that such will was duly executed (although in tbe form and manner hereinafter particularly stated), and that tbe testator at the time of executing the same understood its contents and was of sound mind and memory, and upwards of twenty-one years of age, and was in all respects competent to deyise real estate, and not under any restraint. At the time tbe testator so subscribed said will, and when each of said attesting witnesses so signed bis name at tbe end of the will at tbe request of said testator, and at tbe time said testator so declared said instrument to be his last will and testament, as aforesaid, and just before said' testator subscribed said will as aforesaid, tbe said will was read over to said testator, and tbe testator believed tbe same read and was substantially as follows — and said will was and is .in substance as follows, viz:: ■

“ Tbe last will and testament of James Conway, Sr., of tbe town of Genesee Falls, county of "Wyoming and State of New York.

“I, James Conway, aware of the uncertainty of life, do make, ordain, publish and declare this my last will and testament, in the maimer and form following, that is to say:

“After the payment of my funeral charges, the expenses of administering my estate and my lawful debts, I give, devise and bequeath my property as follows:

“ First. 1 will and bequeath to my wife, Elizabeth Conway, all my real and personal property during her natural life, and at her death to be divided as follows, viz.: To Jeremiah Conway, as the first heir, all-that property east of the Erie R. "Way, formerly known as the King property, containing 45 acres, known as the homestead.

“ 2. To Patrick Conway all that tract or parcel of land bounded as follows, viz.: On the east by Erie R. Way; on west by public highway; on the north, Henry Bigelow property and Anthony Davis prpperty; on south by W. P. Letchworth property, in all twenty-eight acres, more or less.

“ 3. To James Conway, Jr., the first homestead, containing twenty-seven acres, more or less. \Ca/rried to bade of willJ\

“ [ Continued.] Moreover, all my personal property to be divided equally in three shares between the sons Jeremiah, Patrick and James, share and share alike. The wheat on Patrick’s ground tobe divided in three equal shares between them; the use of all bonds equally used between them. Moreover, the timber on the property belonging to my son Jeremiah to be divided into three equal shares.

“To my daughter Bridget Dundon, now of Dale, Wyoming Co., N. Y., I bequeath the sum of twenty dollars ($20).

“To my daughter Catherine Kenedy, now of Warsaw, Wyoming Co., N. Y., the sum of twenty dollars ($20).

“ To my daughter Elizabeth Conway, of Portageville, town of Genesee Falls, Wyoming Co., N. Y., the sum of four hundred dollars ($400).

“ The above amounts to be paid by my three sons in equal shares each. Also, I provide that the said amount, four hundred and forty dollars, be paid to the above-named parties eighteen months after the death of myself and wife.

“ (Signature on face of the will.)

“ Likewise I -make, constitute and appoint Daniel L. Toland to be executor of my last will and testament, hereby revoking all former wills by me made.

“ In testimony whereof, I have hereunto subscribed my name and affixed my seal the fourteenth day of April, in the year of our Lord one thousand eight hundred and eighty 6.

“JAMES CONWAY. [l. s.]

“The above-written instrument was subscribed by the said James Conway in our presence, and acknowledged, by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament; and we, at his request, have signed our names as witnesses hereto, in his presence, and in the presence of each other, and written opposite our names our respective places of residence.

“ DaNiel L. TolaNd, Portageville, JY. Y, Wyoming Go., N. Y.

“ JohN H. Careóle, Town Genesee Falls, Wyoming, W. Y.”

In addition to the foregoing, I find the following facts, viz.:

That said will was and is written upon'one-half sheet of paper of the ordinary size of legal cap paper.

That all of said will, from the beginning of it down to and including these words in brackets, viz., “ [Carried to baclc of will],” where they occur in said will, as hereinbefore set forth, was written on and is upon the first or front page and side of said half sheet of paper.

That the word “ [eontimued ] ” immediately following in said will these words in brackets, “ [Carried to back of will]” where they occur in said will, as hereinbefore set forth, down to and including these words in quotation marks in said will, viz., “ Signature on face of the will,” is written on and is upon the back side and second page of said half sheet of paper.

That all the rest, residue and remainder of said will, including the appointment of the executor, the signature of the testator, the attestation clause signed by the witnesses, and the signatures of the witnesses, is written, and is immediately after these words, “ Signature on face of the will,” and was written oh, and is upon the first page of said half sheet of paper, and on the front side of said half sheet.

That after the testator executed and subscribed said will, and after the witnesses signed said will and the testator published and declared it as aforesaid, the testator died.

There is no substantial controversy as to tbe findings being warranted by tbe proofs. Tbe appellant’s contention is tbat tbe will was not subscribed at tbe end thereof.

Section 40 of article 3 of chapter 6, part 2, Revised Statutes ( [8th ed.] vol. 4, p. 2547), provides: “ First. It shall be subscribed by tbe testator at tbe end of the will. * * * Fourth. There shall be at least two attesting witnesses, each of whom shall 'sign his name as a witness at the end of the will at the request of the testator.”

The learned counsel for the appellant cites, in support of his position, Matter of Probate of Will of Hewitt ( 91 N. Y., 261 ). The judge delivering the opinion says, at page 264: “ Here the signatures of the witnesses are followed by an important provision of the will, disposing of property to his brother. They are not written at the end of the will, but manifestly near the middle thereof, and hence, plainly from an-inspection of the will, the statute was not complied with.”

He also cites Matter of the Will of O'Neil ( 91 N. Y., 516 ), where the instrument was manifestly not signed at the end of the will.

An inspection of this will, a copy of which accompanies the appeal papers, shows that it was written on both sides of a half sheet blank. The form of the blank assumes there was room on the first page to write the whole will, for printed forms for the signatures and attesta tion appear at the foot of the page, and the other side of the half sheet before written upon was entirely blank. There is a clause at the end of the written matter on the first page stating in brackets, “ Carried to back of the will.” On the back of the will the woi’d ‘‘ Continued ” appeared, after which all of the balance of the disposing part of the will was written. Then comes the signature and attestation.

It is obvious that the writing on the back- part of the half sheet was because of want of room on the first, side and a mere continuance, and the person drafting the will takes pains, in substance, so to state. The signature and attestation clause are • where they would and ought to have been if there had been room enough to write the will on

The findings of the learned surrogate are clearly warranted by the testimony. A substantial compliance is all the statute requires. (Jackson v. Jackson, 39 N. Y., 153 ; Tonnele v. Hall, 4 Comst., 140; Hitchcock v. Thompson, 6 Hun, 279 ; Kelly's Case, 67 N. Y., 416 .) There are numerous other eases to the same effect. The authorities cited by the learned counsel for the appellants do not conflict with the above cases.

The conclusion of the surrogate was right, and the decree must be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Decree of surrogate of Wyoming county affirmed, with costs to the respondent payable out of the estate..