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In re Probate of the Last Will and Testament of Field

Supreme Court of New York, Appellate Division

May 19, 1911

In the Matter of the Probate of the Last Will and Testament of WARREN B. FIELD, Deceased. AMERICAN SOCIETY FOR PSYCHICAL RESEARCH, Appellant; MARY H. MCALISTER, Respondent.

APPEAL by the American Society for Psychical Research, legatee, from a decree of the Surrogate's Court of Kings county, entered in said Surrogate's Court on the 25th day of July, 1910, and also from an order entered on the 1st day of August, 1910, granting letters of administration on the estate of the decedent.

COUNSEL

Miles M. Dawson, for the appellant.

Walter Shaw Brewster [Edward A. Freshman with him on the brief], for the respondent, Mary H. McAlister.

Page 738

CARR, J.:

This is an appeal from a decree of the Surrogate's Court of Kings county, refusing probate of an alleged last will and testament of Warren B. Field, deceased. The ground of refusal of probate is the form in which the instrument is expressed, which was held not to constitute a compliance with the provision of statute that a will must be signed by the testator 'at the end' thereof. (See Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], ยง 21.) The decedent being in poor health decided to have his will drawn by his attorney, but to meet the contingency of his death in the meanwhile he determined to prepare a will by himself. In carrying out his purpose he obtained an ordinary stationer's blank form of a last will and testament. This blank was a foolscap sheet so folded in its center as to have four pages, the fold being at the top of each page. On the first page of this blank form was printed the usual introductory form. The first printed clause in the blank read as follows: ' First, after my lawful debts are paid, I.' Then follows a blank space of about five or six inches, intended to be used for language of testamentary disposition. On the same page, towards the bottom, was a printed clause, with appropriate blank spaces, for the appointment of executors and the revocation of all former wills. Then, on the same page, followed a printed form of a testimonium clause, beneath which in smaller type followed a blank form of an attestation clause. This stationer's form was intended to be so used that all the provisions of the completed instrument should appear on the first page, the remaining pages of the foolscap sheet being entirely blank save on the fourth sheet was a blank form of indorsement as to the nature of the instrument, and which would appear on the outside and top of the paper when folded in the manner usual with legal documents. Taking this blank form, the testator filled it out, beginning with its first clause, so that it reads as follows:

'IN THE NAME OF GOD, AMEN. I, Warren B. Field, being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last Will and Testament, as follows: First, after my lawful debts are paid, I will and direct that my Estate be settled

Page 739

as per the provisions of the pages hereto attached and numbered from One to Six, inclusive, and this is to stand unchallenged and unchanged in any form, provided I decease before a will is drawn by my attorney.'

The words above italicised are all in the handwriting of the decedent. Immediately under this clause were attached by two ordinary pins to the face of the form six half sheets of paper written on only one side, forming six pages of writing, each numbered consecutively at the top from 1 to 6. All of these pages are in the handwriting of the decedent and contain various testamentary provisions. The first of these pages begins as follows: 'Jan. 10th, 1910-- Provisions which I desire made in my will and which should I pass away before a will is drawn that I desire executed exactly as though drawn in an iron clad legal form.'

The printed forms on the first page of the instrument providing for the appointment of executors and the testimonium clause were each filled out in the handwriting of the decedent. Then follow the signatures of the decedent and two witnesses. The form for an attestation clause was left unfilled and unsigned. When the paper was signed by the decedent and the two witnesses, these six separate pages were already pinned on the first page of the form as above described. There being a contest the learned surrogate refused the instrument probate on the authority of Matter of Fults (42 A.D. 593) and Matter of Whitney (153 N.Y. 259). From the decree one of the parties named in the instrument as a legatee now appeals.

The appellant contends that the facts here presented differ so essentially from those before the courts in the two cases cited as to render the principles applied in those two cases inapplicable to the case at bar.

In Matter of Fults (supra) the decedent had used a quite similar stationer's blank, of which the first page was intended to embrace the entire will. The space left on this first page for testamentary provisions was, as here, not sufficient for the purposes of the decedent, but on it he managed to write a devise of a farm to his son, leaving ...


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