Majority
p. 293The probate of a paper propounded as the Will of Tracy H. Harris.
Headnote
Will admitted to probate, but the paper propounded as a codicil thereto - rejected.Where the witnesses were called by the decedent to sign the paper lying before him, as witnesses, and not informed of the nature of it, their surmise that "if was a codicil' to his will, does not relieve the want
of a declaration. .....
Where no- acknowledgment of the subscription was made to "one of -the witnesses, there; was - no such acknowledgment, as . the- statute requires.
Sidney S. Harris, Proponent in perrson. ■
A, B. ■ Oaf well,’/ut* Legatee under OodieÜ.
. J. 0. Spencer, Special Guardian for minoi' next of kin,
- Sidney S. Harris, one of the persons named as executors therein, propounded for probate the following paper, purporting to be a will and codicil: " " :
In the name óf God : Amén. I,-Tracy Hyde Harris, of-the city, county, and State of Hew .York, being of sound mind and memory, and considering the uncertainty Of-this life, do make, ordain,-publish, and'declare" this" to be my last will and testament, that is to say:
p. 294
First. After all my just and lawful debts are paid and •discharged, I give and1 bequeath unto my beloved wife, H. Virginia Harris, to be accepted and received by her in lieu of dower, all óf my household effects and furniture, plate and jewelry, and also the sum-of fifty thousand dollars ($50,000.00), lawful money of the United States of America, .and the further sum of nine thousand three hundred dollars, of whatever amount, if any, at the .time, of the issuing of letters testamentary hereupon, may be remaining an incumbrance. Upon the ■ house and lot owned by her, known as street number 46 (forty-six), and situated on the south side of "West Forty-sixth street (W. 46th sft), in said city of Hew York, between the Fifth and "Sixth avenues, together with any accumulated interest . thereupon, so that the house and lot may. thereby and therewith be made free and clear of ánd from all incumbrances ; ánd I do hereby authorize" and direct my’execu-. " tors, hereinafter námed, .to pay over -to her, as soon as " may be after the issuing of letters testameti táry' hereupon, the two afgresaid sums of money, together with "said household effects and furniture, plate and jewelry, to be held, , owned" and enjoyed by her, and her heirs and assigiis forever; which said legacy or legacies, given to-my wife as aforesaid, I hereby declare is intended to be and is so given to her in full satisfaction and recompense of and for . her dower and thirds which she may or "can in any wise ’ claim or demand out of my estáte. 1 " " " 1 ""
Second. I give and bequeath unto my two ‘sons, Edward " Wyckoff Harris, and Tracy H. Harris, Jr.", the sum of _"$Í0,000 each," to be paid to thein respectively, when théy ’. shall ..each attain "the' age of tiventy-one"years, together ’ with any and" all accumulation and increase thereof, which may be tfien remaining undisposed of, or unexpended as héreinafter "provided; and .I authorize " and "direct my executrix hereinafter named," and my Said executors to 'loan the’said two sums of $10,000 each, upon good and safe securities on interest at Seven' per céht per annum ¿
p. 295
and in their discretion, either to apply the and increase thereof, to the maintenance and education of my two sons aforesaid, or place the same at interest upon good . .and- safe securities, until my sons arrive at the age of twenty-one years. respectively, and then pay the same ; over to them, together with the' principal as. aforésaid; . the. interest upon each of said sums. of $10,000 to tie . applied to the education and maintenance of each of my said sons respectively, or added to and be paid over with ..theprincipal.to, each.respectively, so that each shall have , the solé benefit of the. sum- of $10,000, together with the increase thereof.
Third. I give and bequeath unto my esteemed father, . Thomas J.- Harris, the interest or increase of and upon the sum of, ten thousand dollars ($10,000), for and during the term of his natural life; and I do authorizé and direct my, said executrix and executors to loan that'suin' of money upon good and safe securities^ with interest payable ..semi-annually,, to my father aforesaid,' during tlie said term of his natural life; and from and after his decease, I give, and bequeath the said sum of ten thousand dollars to the, .trustees.of The American Baptist Home Missionary Society, and then; successors and assigns forever.. .. ’ .. . ' '■
•. Fourth. I give and bequeath the sum of twentydive , thousand dollars to the Evangelizing Committee Of the Hudson River Baptist Association, South, to be invested or loaned by said committee and their successors, upon good and safe securities, during, the- continuance of such committee; and the. annual, or semi-annual interest there- .. upon to be. used, employed, and. expended by the- said committee for the purposes/and advancement Of the said associationand in case of the dissolution or discontinuance of .such committee^ I give and bequeath the said sum of twenty-rfiye, thousand dollars to the trustees óf the said ^Hudson River Baptist. Association, South, and to , their successors, and assigns forever. ■ _ • ; . /
p. 296
"Fifth. I give and" bequeath the suite of one thousand dollar's ($1,000) to the trustees of Dartmouth College, at Hanover, in the ' State of Hew Hampshire, and to their successors and assigns forever. ' - . •:
Sixth". I hereby acknowledge and recognize as a legal, just and equitable claim and debt against my estate, five certain promissory notes of five thousand" dollars each, given by me to the Trustees of the Rochester University at Rochester, in the State of Hew York, all bearing date September 1, 1865, and payable on the first day óf January in the years 1867, 1868,1869 and 1870 and 1871 respectively; and I authorize and direct my said executrix and executors to pay the same, upon the issuing, of letters testamentary hereupon, or such part or "portion thereof (if any there bé) as shall then be "remaining unpaid.
• Seventh. I héreby authorize and direct my said executrix and executors to distribute and pay over the remainder of my estate, both real and personal, to my heirs,'in accordance with the established, laws of the State of Hew Yoriffor the distribution of intestates estates.
Lastly-. I hereby nominate and appoint my said wife to be executrix* and.my friend Jacob F. Wyclcoff and Sidney S. Harris" to be-executors of this my last will and testament, hereby revoking all former wills by me made;
In witness whereof, :I have hereunto; set my hand and seal, this day of Hovember, in the year of bur Lord one thousand eight hundred and sixty-five.
Tract H. Harris. [l. s.j
The above instrument", consisting of two sheets, was/ at the date thereof,, signed, sealed) published and declared by the said Tracy Hyde1 Harris as and for his last will and 'testament, in’presence of us, "who, at his request" and in Ms presence and in the presence of each other, have stib-’ scribed our naiñés as witnesses thereto., , *•
Hiram F. Hutch, Hew York city.
Jóhít M. Morse, Hoboken, H. J. ”
E. S. Fierce, Tremont, H. Y
p. 297
It is my request that.the sum of twenty thousand dollars shall be donated from my estate to the American Baptist Home Mission Society, for the church edifice fund, this amount to be in addition to the- ten thousand dollars mentioned in the foregoing will to be donated that society after my father’s decease. ..
Hew York, June 11,1867.
„ ; . Teacy H. Habéis,
Witness—' •
H. Hayden,
T. T. Thompson. .
• The Surrogate appointed James 0. Spencer, Esq., special guardian of -Edward W. -Harris and Tracy H. Harris, minor next-of kin and heirs-at-law of the decedent. On behalf of his wards, the special guardian contested the proof of the codicil -above recited, dated the 11th of June, 1867. - . . - . - . .
Hathaniel Hey don, a witness, called for the proponent, testified*. He is a subscribing witness to- the paper purporting to be a codicil, and now shown to witness; the decedent’s name was' signed to the paper béfore this wit-' ness signed the paper; did not see the decedent sign;. the decedent came to the witness, and'wished, witness to step into his -office;= he did so; decedent gave ■ witness the ■ paper; did not say what it was; did not • say that that was his- signature; all the decedent said was, “ witness that; ” witness- did sign, and handed the paper back to decedent, and left the office; no one else was present; this is all that took place; witness was in employ of the . decedent as clerk, at that time.
On cross-examination witness says : Decedent came to witness, and said...he- had a document he wished him to ■ witness; • witness then went with decedent into his office; this paper propounded was .there lying on the desk;,it and the signature ,to it were all in decendent’s handwriting, which the witness was acquainted with; witness saw the signature. when he made his pwn, but did not notice ‘
p. 298
the .other part; did not read any portion of it; is pretty positive decedent used the-expression “ here is a document I wish you to witness;” the witness supposed the paper was decedent’s will at the time; the witness remembers a conversation with Mr. Thompson (the other subscribing witness), in reference to the document they had witnessed; it was soon after the occurrence; don’t recollect if it was that day; the conversation was in regard to decedent’s brother, Charlie Harris; that Charlie was receiving something -by the will—$10,000 or $20,000; supposed it was a codicil to the decedent’s will, because witness knew decedent was going away; had no reason for knowing it was for certain, but supposed it was.
Thomas F. Thompson, called for proponent, testified: Is a subscribing witness to the paper propounded as a codicil; did not see the decedent sign it; at the time the witness signed it, the decedent was sitting at his desk in the out side office, at Ho. 388 Broadway; the witness was. standing within fifteen feet- of him ; the decedent stood up, looked around, and called for Mr. Hayden; Mi1. Hayden was standing in the center of the store; witness called him; witness saw Hayden sit down and sign some paper; decedent then called this witness, and asked him to sign the paper; the paper was lying on the desk; decedent pointed to his own signature—simply pointed to it, and asked witness to sign it; witness-commenced to read it, but decedent said it was not necessary to read it; that it was a mere matter of form of witnessing his signature; the witness saw that it was decedent’s signature ; recognized the paper to be in decedent’s handwriting, and signed as a witness; decedent made the remark that he did not know what might happen by crossing the Atlantic; thinks this remark was made at the close of the conversation; from all that decedent said and did at the time, the idea was conveyed to witness that it was a will or a codicil; decedent did not say so; witness got the idea that it was a will pr codicil, from the
p. 299
fact of seeing a sum named in the writing, and from decedent’s asking him to witness it; from the day of witness’ witnessing the paper until to-day, witness has been under the impression that the word “ codicil ” was at the left hand corner.of the page; immediately after signing the paper, witness had a conversation with Mr. Hayden in relation to it; witness made a remark to Mr. Hayden that the decedent had remembered his brother in the codicil we had signed; for, seeing the letters “ Ch.” in the paper, witness supposed it was a legacy to decedent’s brother; thinks Mr. Hayden said “yes;” at the time decedent said to witness that it was “ a mere form of witnessing my signature,” thinks he called, in that way, witness’ attention to his signature; called ■ witness’ attention from reading the paper, to the signature, and to his witnessing it.
Cross-examined.
The recollection of the witness is distinct as to the main points of the facts and circumstances ; when Mr. Hayden signed this, witness was standing at the same place where he was when he called Hayden; saw Hayden sign, as well as he could at about twelve or fifteen feet from him; saw him take the pen and sign; did not hear the decedent request Hayden to sign; saw him as if speaking to Hayden, but did not hear what he said; saw him point to the paper; when this witness signed the paper, the decedent was not at the desk, but may not have been far off; thinks he was going to the front part of the store.
Nothing appears to have been said by the decedent to the witness, Hayden, which had any reference to his (decedent’s) subscription of the paper propounded as a codicil. That being the case, it is not necessary to discuss whether the language used by him to the witness, Thompson, was a sufficient acknowledgment to him of the subscription. The subscription was not acknowledged, in contemplation of law, by the decedent
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to have been so made, to each of the attesting witnesses. (3 R. S., 5th ed., p. 144, §§35-2.)
There was no declaration or publication to either. of the two witnesses that this paper was a will or codicil, nor were any words used by the decedent which implied such a declaration to them or either of them. On the contrary .he took pains to keep the witness Tompson in ignorance of what the paper was, - by telling him it Was nót “ necessary to read it.” There is no attestation clause, and the impression which.the two clerks seem to have got as to the nature. of the instrument was certainly not derived by them from the decedent at the time of their signing it.'-
Although the decedent has made a paper intending it for his will, he must comply with the statute. (Peck v. Cary, 27 N. Y. Rep., p. 24.)
If there be a reasonable doubt whether any one of the requirements of the statute has been complied with, probate must be denied. (Tarrent v. Ware, 25 N. Y. Rep., p. 429.)
And the Courts have gone no further than to hold that if the decedent requests the witnesses to sign, and at the same time declare it to be his will; there is a substantial compliance with the statutes. (Baskin v. Baskin., 36 N. Y. Rep., p. 416.) Ho-Cases hold that a request to sign as witness, without a declaration that it is a will, would be sufficient.
•There must be a decree admitting thé will to probate, and rejecting the paper offered as a Codicil. ’1 ' ■ ' j