In re the Probate of the Alleged Will of Whitney

. The will was rejected by the surrogate because the third and fourth clauses thereof were not written in the body of the will, but upon a separate piece of paper fastened to the face of the will. These clauses were intended by the testator as a part of his last will and testament, and were attached to the face of the will at a point near the end of the second clause with metal staples on one side of the paper, so that by raising up the unfastened end of the paper-attached, the place where it should come in on the principal paper was apparent. The will was written on a blank form. The blank left for the disposition of property had been written full when the end of the second clause was reached, and at sucli end are the words “see annexed- sheet.” Then comes the annexed sheet, and the-whole reads as follows (after the preliminary statement and a provision for the payment of debts):

“ First. I give and devise and bequeath to my brother Ira I. Whitney the undivided one-half of the farm lying in the town of Parma, Monroe county, and State of New York, with the provision that within one year after my decease he pay to his son James R. Whitney five hundred dollars, which shall be a lien on said premises until so paid, and I give, devise and.bequeath to my brother Henry Whitney the use of the other undivided one-half of said farm for and during his lifetime, with the provision that he pay to his son Douglas S. Whitney five hundred dollars within one year after my death, which shall also be a lien thereon until paid; said farm is described in a certain deed of conveyance recorded in Monroe county clerk’s office, New York, in liber 481 of deeds at page 459, together with immediate possession and all arrearages of rent therefor. After the death of my said brother Ilenry I give the said premises to his lawful heirs.

“ Second. I give to Eliza Wilson, wife of John B. Wilson, the

sum of five hundred dollars, to be paid within one year after my •death.

“ See annexed sheet.

“ Third. I give, devise and bequeath to my wife, Anna C. Whitney, five hundred dollars in trust, to be paid by her to Florence L. Root, a daughter of Charles A. Root, a nephew of my wife, at .such times as my wife thinks proper, but not until she shall be 21 years old, but before she is 25 years old.

“ Fourth. I give, devise and bequeath to my wife, Anna O. Whitney, all the balance of my estate, both real and personal, of every kind.”

Then followed a clause appointing executors, the testimonium clause, the signature of the testator, the attestation clause and the •signature of two witnesses with the third and fourth clauses inserted in their proper place. The will is rational, consistent and complete, disposing of all the property of the deceased’ and providing for the natural objects of his bounty. Eliminate these clauses and the purposes of the will are not accomplished. No provision is made for the wife of the testator, and the bulk of the testator’s property is not disposed of, and as to that he would have died intestate. The words at the end of the second clause, “ see annexed sheet,” •and the commencement of the annexed sheet, being “third,” taken in connection with the fact that the annexed sheet was in fact fastened to the principal pajjer, enable us to locate without doubt the exact place where the decedent intended the third and fourth clauses to be inserted. Another consideration aids this location, and that is that he residuary clause, which usually follows the specific bequests and devises, is at the bottom of the attached sheet. '-It is, therefore, apparent that the third and fourth clauses were inserted in the will before “ the end of the will,” so that here is an exact compliance with the statute unless it be assumed that interlineations or additions to the face of the instrument cannot be made at all. This will hardly be claimed, as an interlineatipn may be made in a will as in any other instrument, provided that the place where it should appear is designated by the instrument itself with sufficient certainty.

Williams on Executors (at m. p. 91) says : • “ If the testator in a will or codicil or other testamentary paper duly executed refers to an ■existing, unattested will or other paper, the instrument so referred

In the last case a map in the register’s office descriptive of the property devised was referred to in the body of the will and a copy was annexed to the will. The court says at page 143, “ the map on file in the register’s office, or a reduced copy of it annexed, may be treated as a part of the instrument (citing cases); its contents must be incorporated and distributed in it to the extent of the several references made to it at the places where made, and thus the contents of the paper to which the instrument refers will be deemed constructively i/nserted before the point is reached where the subscription by the decedent and signing by witnesses are made.” It was established before the surrogate, and he found, in effect, that clauses third and fourth were attached to the face of the will at the point above indicated before its execution by the testator or witnesses, and that they were intended to be a part of his will by the testator and that the will was executed in all 2-espects as requii-ed by the statute. There was no fraud in the transaction apparent or pretended. The contestants rely upon The Matter of Hewitt ( 91 N. Y. 261 ); The Matter of O’Neil (Id. 516) and The Matter of Conway (124 id. 455).

In the O^Neil case the will consisted of four pages; the formal commencement was on the first page and the formal termination printed at the foot of the third page, where the names of the testator and witnesses were written. On the fourth page were material provisions of the will and not connected by reference or symbol, or asterisks, to the other portion of the instrument.

In the Conway case a printed blank form was used, and the spaces on the first side of the paper were all written full with complete devises, and at the end of which was interlined in parenthesis the words “ carried to back of will,” upon the top of the back of the sheet, ox' before the material entries were written, the word “ continued;” following it were various bequests, and then the words “ signature on face of the will.” In each of these eases the will was rejected by the court because the testator and witnesses did not execute the will at the end thereof. The last case (Matter of Conway) was decided by the Second Division of the Court of Appeals, where four judges reversed the General Term of the fifth departpartment, three judges, Bradley, Haight and Brown, dissenting. This case should certainly not be extended further than the facts therein absolutely require. These cases hold that the intent of the Legislature, that the execution of the will should be at the end, cannot be subverted, no matter what was the intention of the testator, and although, from the circumstances proved, there was no oppoi'tunity for fraud and none existed, and their decision was put uj>on the ground that, as a physical fact, a part of the will was uot embraced in that portion of it that precedes the signature at the end of the will. Those cases are plainly distinguishable from the one at bar-In this case the interlineation or attached paper by the terms of the instrument itself is to come in and be made a part of the will before the formal ending thereof. In the other cases, and especially in the last, the testator in words violates the statute and places important provisions of the will beyond the end thereof and after the sig: natures of the witnesses and testator, and upon the back of the

The decree of the Surrogate’s Court should l^e reversed and the proceedings be remitted to the surrogate of Monroe county, with directions to proceed with the probate of the will, and that the appellants recover the costs and disbursements of this appeal, to be paid out of the property of the deceased.

Lnwrs and Adams, JJ., concurred.

(dissenting):

The alleged testator was of sound mind and memory at the time he made the instrument purporting to be his will, and in its execution the statutory formalities were observed in so far that he signed it and declared the instrument to be his last will and testament in the presence of witnesses, who, at his request, subscribed ■ their names as such. The only question about its validity as a will arose from the fact that a portion of the provisions of the will was on a slip of paper attached to that upon which was the testimonium clause subscribed by the testator. The draughtsman used a printed blank and filled the blank space with provisions numbered first and second, then added “ see annexed sheet,” and a paper upon which was written by him clauses numbered third and fourth was there attached to the instrument by means of two metal staples. The only refei'ence to it was that before mentioned, and on the slip was nothing denoting its relation or reference to that to which it was so attached other than in 'the disposing clauses numbered third and fourth. It appears by the evidence of the draughtsman that the slip so annexed, as well as tire other portions of the instrument, was read by the testator and constituted a portion of the instrument declared by him to be his last will and testament. And upon the evidence the conclusion is fairly required that the latter treated and intended it as a part of his will. The statute provides that every last will and testament “ shall be subscribed by the testator at the encl of the will.” (2 R.. S. 63, § 40.) The observance of this requirement is essential to the validity of a will. (Sisters of Charity v. Kelly, 67 N. Y. 409 ; Matter, etc., of Hewitt, 91 id. 261; Matter, etc., of O’Neil, Id. 516 ; Matter of Conway, 124 id. 455.)

In the O’Neil case it was evident that the added provision which followed the signature of the testator to the instrument was intended as the continuation of a provision in the body of it above the signature, but for want of room in the printed blank it was continued upon the following ¡Dage to completion. And in the Oonway case the provisions of the will were in like manner and for the same reason carried on to the page following that on which was the testimonium clause subscribed by the testator, and at the place of departure were the words “ carried to back of will,” and upon the back was the word “ continued,” followed by the provisions there written. In both cases it was held that the instruments were not subscribed at the end, as required by the statute.

In those cases as in this one, it may be said that the makers of the instruments regarded those provisions as inserted in the places so indicated, and thus treated their signatures as at the end of the wills. The place at which the slip was attached to the instrument in the present case does not seem, in the legal aspect, to- be different in effect than if it had been affixed below that of the signature, or on the following page. It is referred to as annexed.

The statutory requirement is inflexible, and the reason for the construction thus given to it as applicable to the execution of wills is to prevent abuse or fraud in testamentary instruments and alteration of them after their execution. As was said in the O’Neil case, by Chief Judge Ruger : “ While the primary rule governing the interpretation of wills when admitted to probate recognizes and endeavors to carry out the intention of the testator, that rule cannot be invoked in the construction of the statute regulating their exe-' cution.” Whether the alleged will in the case at bar was subscribed by the testator at the end of it is a question of statutory construction. The application of the doctrine of the Comoay case requires

The contention that it may be admitted to probate as to the provisions other than those contained in the annexed slip cannot be supported. Treating the instrument as not duly executed as a will, it cannot be given probate as such. (Sisters of Charity v. Kelly, 67 N. Y 409 .)

Alike question was considered in the O’Neil Case ( 91 N. Y. 524 ).

The decree of the Surrogate’s Court should be affirmed, with costs to the respondents payable out of the estate of the decedent.

Decree of the Surrogate’s Court of Monroe county reversed and the proceedings remitted to that court, with directions to proceed with the probate of the will, with costs of the appeal to the appellants payable out of the estate.