In re Proving the Last Will & Testament of Burbank

Van Brunt, P. J.: There is. no claim made- upon this appeal but that the will which Was admitted to probate was duly executed so as to entitle it to probate, and that the testator at the time of its execution was.of sound mind and that there was .no. evidence of undue influence. It is urged, however,, that there was competent evidence offered tending to show that the testator had made two later wills thereby revoking the will admitted to probate which, however,, had ¡been lost o.r destroyed, and consequently coitld not be produced. ' The questions presented upon this appeal are whether there was evidence presented which established the execution of either of these wills, and, if there Was not, whether the learned surrogate erred in his rulings excluding evidence which the contestants claim' was competent as-ten ding to show the due execution of these instruments or one of them. There is also another point raised because of the refusal of the surrogate to postpone the conclusion of the .hearing upon the application.to probate the will in question until a nephew who had attempted to commit suicide and was then insane could recover sufficiently tó be a witness. 'The evidence adduced upon the trial, so far as relates to the execution of the willsfln question, seems to be as follows.: Ambrose B. Burbank died in the county of New ¡York on the 17th day of January, .1904, aged ninety-three years. • It appeared that he left a wil.l which ,he had duly executed on the 29th of March, 1889, Which is the instrument admitted to probate. The contestants then offered evidence which they claimed tendéd to show that on the 27th day of December,- 188.9;, the same year that he had made the-probated will, the testator had. made ■ another will by Which" he revoked the will Which was admitted to probate. . The evidence óf Mrs. Newcomb, the widow of a deceased nephew of' the testator, was to the effect that on the — 315 — 28th of March, 1890, the testator called at the Hoffman House, where the witness was staying with her husband and her daughter, and that an interview took place at which the testator, her husband, since deceased, her daughter and herself were present, and that the testator took from his overcoat pocket two papers and said, “Newcomb, here is my will.” Mrs. Newcomb further stated that she knew lier uncle Ambrose’s handwriting; that the paper (referring to paper dated December 27,1889, and called will No. 2) was from the beginning to the end in the handwriting of her uncle Ambrose; that it was signed by him; that she had ample time to examine the paper; that she had it in her hands three times that day, and that the first thing on the outside was “Last Will and Testament of Ambrose B. Burbank, December 27, 1889,” then on the inside it was altogether in his handwriting. The witness further testified that she saw some writing under the signature of the testator that went across the page, and that she saw two names below that in two handwritings. The names were Alex T. Groser and Alpheus D. Du Bois. The witness further stated that she knew the handwriting of Mr. Groser, having seen him write, and that the name Alex T. Groser at the bottom was in Mr. Groser’s handwriting. Dn Bois and Groser both died before the testator. Gros'er’s name was below that of Du Bois. The witness further testified that the name of Du Bois was not in the handwriting of Groser or the testator. The witness at this time did not know the handwriting of Mr. Du Bois, and she never saw him while living, and never, so far as appears, had any communication with him or saw any communication from him. Mr. Du Bois died on December 13,1903, and the only way which the witness liad acquired any knowledge of Mr. Du Bois’ handwriting was that pending the proceedings for the probate of .the first will herein as appears by the evidence of her daughter, who was subsequently examined as a witness, she examined what purported to be the will of Du Bois on file in the surrogate’s office of New York county, and some payrolls - in the comptroller’s office upon which" Mr. Du Bois’ signature appeared, he having been employed, in the educational department of the city in his lifetime. The witness herself stated that she examined the payrolls after she had seen Mr. Dn Bois’ signature on his will in the surrogate’s office. — 316 — 'The witness was then asked if she then (that is, at the time of testifying) Anew the signature of Du Bois, and this was excluded. All evidence as to the contents of the December will was excluded upon the ground that th& factum was not proven. A daughter of Mrs. Newcomb was called and testified to the same effect as her mother. Mrs. Newcomb also testified to have seen a still later will, dated June, 18971 ■ One of the witnesses to this third will was Mr.- G.roser, but she stated that she was unable to distinguish the name of the other witness because it was written illegibly. Letters of the testator containing declarations as to a -will subsequent to that probated were offered in evidence, but they were excluded. ' The exceptions to these various rulings raise the principal questions which are presented upon this appeal. It is' claimed by the contestants that, the evidence of Mrs. New-comb and her daughter as to the handwriting of Du Bois as a witness to the second will should have been received, and that it was. error to exclude the same; that the letters of the testator containing declarations .as to his wills were competent evidence, and that it was. error to: reject the same; and that, even if these rulings were, correct, there was sufficient evidence to show the due execution of a. will later than that probated, and that they should have been allowed td prove its contents, its loss being established. It is urged in support, of. the latter - proposition that they have proved the existence of a will, in the handwriting of the testator, duly signed by him, and also signed by two witnesses at the end of an attestation clause; that they have proved' that" both of the witnesses' are dead,, and the signature of one of them, who was the last to sign, and that they have also proved that it was the intention of the testator to revoke the will probated by the lost will No. 2. Under this state of proof it is claimed by the contestants that the court should have drawn the presumption that will No. 2 was duly executed. Some English cases are cited which seem to uphold this view, but! our attention has hot been called to any case in this State where the evidence of a desire of a testator not to die intestate or not to die testate as to a particular will, coupled with incompetent evidence of an effort fo effectuate .'this purpose, has ever been held to supply the want: of complete proof of the due execution of — 317 — an instrument carrying out this purpose. It is to he observed that the English statute in reference to the execution of wills is very different from ours. Ceremonies attending the due execution of a will under our laws are not at all provided for by the English statute. The English statute requires for the due execution of a will that it shall be in writing, that it shall be signed by the testator at the end thereof, and his signature shall be made or acknowledged by the testator in the presence of two or morejwitnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. (See 7 Wm. 4 & 1 Vict. chap. 26, §§ 9, 13.) In addition to these requirements our statute (2 R. S. 63, § 40 et seq.) provides that at the time of signing the will or making such acknowledgment the testator shall declare the instrument so subscribed to be his last will and testament, and that the witnesses shall sign at his request, these latter formalities being absolutely essential to the validity of the execution of the will. Our statute further provides that where the subscribing witnesses to a will are dead, such proof shall be taken of the handwriting of'the testator and of the witnesses so dead, and of such other circumstances as would be sufficient to prove such will on a trial at law. (Code Civ. Proc. § 2620.) That is, you must prove the signatures of the testator and -of at least two witnesses by legal evidence where the witnesses are dead, and also such other circumstances as show that the formalities of the statute have been complied with. Presumptions have been indulged in in our courts to supply the direct proof of the circumstances required by the statute to accompany the due execution of a will, as that the subscribing witnesses when dead are said to speak through the attestation clause of the will, but the proof of the signatures has never been dispensed with and presumption allowed to supply its place. ; The claim that because Groser signed his name under that of Du Bois that it jiroved Du Bois’ signature hardly- seems tenable, as under such circumstances the signature of a dead man would be of greater potency than that of a living witness. Besides, there is no evidence whatever that Groser knew Du Bois or his signature. Under our law witnesses are not required to sign the will in the presence of each other as is, required by the English statute. — 318 — This brings us to the consideration of the question as to whether érrors were committed in the exclusion of proposed evidence. The first error claimed is the exclusion of the evidence of Mrs. Newcomb and her daughter, of their opinion as to the genuineness of the signature “ Alpheus D. Du Bois ” at the end of the will. It is urged that although these witnesses had never seen or known' Mr. Du Bois, had íieyér seen'him' write, nor had ever seen any writing made by him, nor had seen any signature purporting to be his except that, alleged to have been signed to will No. 2 some four- ' teen years ago, before the commencement of these proceedings, they became competent witnesses upon the subject of the signature of Mr. Du Bois, because during the' progress of these proceedings they had seen a signature ;to a will which purported to be the will of Mr. Du Bois and'some signatures-to payrolls which were proved to have- been those of Mr. Du Bois. In other words, it is claimed that these witnesses having compared the recollection of the signature that they had seen fourteen years ago at tli'e' (end of will, December, 188.9, purporting to be the signature of -Mr. Du Bois, with some signatures proved to be his, are competent to testify from this comparison of handwritings as to the verity of the signature at the end of the destroyed will. I have been unable to find any rule of evidence which'permits such a one-sided qualification of 'a witness to testify upon a particular trial. I say one-sided qualification because there is no possibility of any one else preparing himself in the. same way, as he lias not and cannot ' have the “ to be proved signature ” for his examination, it having been destroyed. ■ In all cases where • evidence has been allowed • because of qualification by comparison of handwritings' all the writings must be before the court so that the opposite party may -have an equal opportunity for comparison. It'is .undoubtedly true that opinions as to handwriting are always the result of .comparison of handwriting, the witness comparing the “ to be proved signature.” in his- mind.with signatures.' that;he has seen 'written or with signatures to letters or other documents which the witness has seen, purporting to be in the handwriting of the party whose sign ature is to be proved and which letters, and documents are surrounded by such circumstances as induce'a reasonable presumption of their being liis own handwriting. But in these — 319 — cases of comparison the opposing party may resort to the same kind of evidence, producing witnesses who have also seen the party write or have seen writings of his. “ In both these cases the witness acquires his knowledge by his own observation of facts occurring under his own eye and which is especially to be remarked without having regard to any particular person, case or document.” (1 Greenl. Ev. [15th ed.] § 577.) Where, however, the writings are compared with a “to be proved_ signature ” which exists only in the mind of the witness no opportunity is offered to meet such evidence. The rule seems to be universal that it .is only an “ expert ” that can qualify himself to give evidence in a particular case, and an expert as to handwriting is defined to be “ any person who has had such experience in the examination of handwriting as to enable him to noté .and distinguish the characteristics of handwriting.” Recognizing the rule that experts only can qualify themselves to testify in a particular case, there seems to have been an attempt upon the part of the contestants here to show that Mrs. Newcomb had had such experience of handwriting as would qualify her to testify as an “ expert,” but the evidence fell far short of showing such qualification, and the claim that she was an '“ expert ” does not seem to be now insisted upon. In the case of Miles v. Loomis (75 N. Y. 288-298) the opinion of the court expressly recognizes the rule that it is only an “ expert ” that can especially qualify himself to testify in a particular case. The court calls attention to the case of Doe v. Suckermore (5 Ad. & El. 703, decided in 1836) in which case it states that “ the whole subject received very great consideration. * * * The rule seemed to be conceded in that case by all the judges that, as to any but ancient writings, an opinion formed upon a mere comparison of hands at the trial, eo instanti, was not admissible, but they weré equally divided upon the question whether a knowledge of the handwriting might be obtained by a skilled person sufficient to render him a witness competent to speak as to the genuineness of the signature, merely by a previous examination of other signatures proved to be genuine.” I have been unable to find any case which in the slightest degree recognizes the admissibility of the evidence of any person who had qualified himself to testify in the particular case unless all the writings compared are produced. — 320 — It appears that there are three methods by which a witness. may be qualified to speak as to handwriting to be proved: First: By having seen the party write. Second. By having seen letters or documents in the handwriting of the party whose signature is sought to be proved, -having personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such act, or by such adoption of them as induces a reasonable presumption of their being his own writing. Third. By comparison of handwritings by an expert. The counsel for contestants contend that the second mode is that involved in .this proceeding. But there is one essential element in the second method conspicuously absent, in this .case. Whatever knowledge the witness has who seeks to bring himself under the rule of the first two cases must.be acquired by his own Observation' of facts, occurring under his own eye, and, which is especially to lie remarked, without having regard to any particular person, case or document. (1 Greenl. Ev. [15th ed.] § .577.) In the case'at bar the knowledge as to the handwriting, whatever it was, was -especially acquired having regard to a particular person, case and document, directly in contravention of the rule- which governs this class of evidence. In no view of the evidence, therefore, were these witnesses qualified to give their opinion as to the signature “Du Bois” at the end of the will. > The next class of evidence which it. is claimed was erroneously excluded was that consisting of declarations of the testator relating to his wills. It' may .be well to call attention at this point to the statute which declares the methods by which a will may be revoked. The Revised Statutes (2 R. S. 64, .§ 42) relating to wills provides, amongst other things, that “ no will in writing * * * nor any part thereof shall be revoked or altered, otherwise than by some other will in writing, or some .other writing .of the testator, declaring such revocation or alteration, and executed with the same formalities , with which the will itself was required by law to be executed, or unless such will be burnt, torn, cancelled; obliterated,.or destroyed, with the intent and for the purpose of revoking the same, by the testator himself,” etc; In view of the statute regulating the execution.of wills, and this — 321 — statute governing the method of revocation, the courts have held that declarations of a testator, made subject to the event, are inadjnissible upon the issue of the making or revocation of a will, it being held that the consideration of. such evidence would be in effect a repeal of the requirements of the statute. It is true that cases may be cited where such evidence has been admitted without objection, and the courts have commented upon it and seem to have given it considerable weight, but no case has been called to our attention which has held that where such evidence has been objected to, it was. error to exclude it. As a matter of principle,.it would seem that such evidence must be incompetent. If it is admissible, a will could be established or revoked without proof that the formalities which the law has hedged around testamentary papers had in any respect been complied with. The only declarations of a testator in respect to such papers which are competent are those that he makes at the time of execution, they being then part of the res gestee. The requirement of the statute, that the signatures to wills of such witnesses as may be dead shall be proved, shows that nothing short of common-law proof of the facts required by the statute to attend the execution of testamentary papers will suffice. The intention of a testator may be a guide in the construction of a will, but it will not supply, no matter how proven, proof of compliance with the requirements of the law. In the case of Atkinson v. Morris (Pro. Div. [1897] 40) in the Court of Appeal of England, the rule is laid down, concurred in by all the judges, that declarations made by a testator after the date of an alleged will, are not admissible to prove the execution of a will, and they "are equally inadmissible to prove, its revocation. Lord Russell of Killowen, C. J., says upon this point: “ No one can doubt that this lady intended to revoke her will, and that the court ought to t>e astute to give effect to that intention, if it can do so consistently with the established and settled principles of law. The Wills Act has laid down the formalities which are to be observed in order to make an effective and operative willand if those formalities are not complied with, the law steps in, and however clear the intentions of the testator may have been, unless they are expressed conformably to the requirements of the statute, they are — 322 — disregarded, and his estate is distributed as upon an intestacy. The statute also prescribes similar formalities in the case of the revocation of a will.* When it is to be revoked by writing, the writing must be. attested with the same formalities as are required in the case of a testamentary disposition. It is clear, therefore, in the present casej that although the intention of the testatrix to revoke her will was clearly expressed and' expressed-in' writing, it is not expressed conformably to the statute, and the writing, which would have been perfectly good as a revocation if it had been duly attested, cannot be relied upon as evidence of revocation.” Bindley, B. J., concurred in the above, and at the end of his opinion sums up the whole matter, saying that there was no revocation because “ she has not done that which the law requires to effectuate her intention.” A. B. Smith,. B. J., says: “ I own that I have struggled during the argument of this case to escape from having to hold that this will of August 8, 1878,-as it now stands, expressed the intention of the testatrix at the time of her death. I have not the slightest doubt that it did not then express her intention, and I have looked carefully to see whether we could not get out of the difficulty in which we are placed in holding that this was her last will and testament at her death, when I know it was not her intention that it should be.” He then, in speaking of •the rejection of the evidence of declarations of. the testatrix, says : “ The objection taken is that this evidence was not admissible, for this-reason: You cannot prove the factum of the execution of a will, according to the Wills Act, by hearsay evidence 4—by a statement of the testatrix herself that she had executed the will. I am clearly of opinion that this objection is well founded.” He then refers-to the fact that there is a long series of - authorities showing that, declarations as to execution of wills are inadmissible, and proceeds :: “How is it possible in the face of these authorities * * * now to say that the factum of the execution of a will can be proved by hearsay evidence? In my judgment the proposed evidence was not admissible, and it was rightly rejected by the learned judge.” I have cited thus at length from the opinions of the learned judges who wrote in the case cited to show.how rigid the rule is, as, notwithstanding all the sympathies of the judges were the other way, — 323 — it was felt that the statute must control. The same rule.oh tains in this-State. In Matter of Kennedy (167 N. Y. 163) Judge O’Brien, in expressing the views of the court, says: “ The great weight of authority in this State is to the effect, that the declarations of a deceased person are not competent evidence either to prove that he has - made a will, or to prove the continued existence of a written will, unless made in connection with some act under- such -circumstances as to become a part of the' res gestae ; and declarations of the deceased tending to show that a written will has been revoked are open to the same objection, unless they accompany some act which . the statute prescribes as a requisite of revocation; and then they are received, as in other cases, as part of the res gestae P In the case of Throckmorton v. Holt (180 U. S. 552) the rulé is distinctly laid down that the declarations of the deceased, when not a part of the res gestea, are not admissible to prove the execution of á will, or its revocation. It seems to be clear, therefore, that declarations of the testator, made after the factum of the execution of the wills, were incompetent to prove the execution of will No. 2 or the revocation of will No. 1, and were properly excluded. The only other question which remains to be considered is 'whether it can be said that the learned surrogate abused his discretion in refusing to postpone the closing of the trial until Samuel. M. Burbank, at,the time insane, could be produced as a witness. We do not think that he did. The trial had been commenced, and it would be a very unusual thing to suspend a trial to await the production of a witness. It is true that the surrogate made an order-for the exami-' nation of Samuel M. Burbank. But that was done when it was thought that he could be produced. When, however, the true condition was shown to the surrogate, and that it would certainly be months before he could possibly be in a condition to testify, and • might never be in such a condition, there does not seem to have been any abuse of discretion in not waiting upon this uncertainty. The decree should be affirmed, with costs to the respondents against the contestants. Patterson, O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented. , ’ ' Footnotes [*] See 7 Wm. 4 & 1 Vict. chap. 26, § 20 et seq.— [Rep.