In re Proving the Last Will & Testament of Irving

Dowling, J,: Mary Irving, employed as a chambermaid at the Woman’s Hospital, in New York city, died after a brief illness on February 10, 1912, leaving a last will and testament whereof her friend Mary Galvin was executrix, and by which after the payment of her debts and funeral expenses the residue of her estate was left to said Mary Galvin “in appreciation of all her [729] kindnesses to me during my life.” The will was witnessed by Adelaide Galvin (daughter of the legatee) and J. E. Brown, and as decedent signed by her mark, it was witnessed by the notary who had drawn the will, W. J. Dargeon. Decedent left a sister, Delia Ogg, an incompetent, who for many years-had been an inmate of the Hudson County Insane Hospital at Jersey City, N. J., and the latter’s daughter, Hazel I. Ogg. The testimony of the subscribing witnesses is ample to warrant the admission of the will to probate and no possible question could be raised as to its validity were it not for the fact that decedent, who could read and write, did not sign her' name thereto, but simply made her mark. This does not of itself invalidate the will. A testator who desires so to do may make his mark, adopting that as his signature, and it thereupon becomes his signature within the meaning of the statute. (Jackson v. Jackson, 39 N. Y. 153; Decedent Estate Law [Con-sol. Laws, chap. 13; Laws of 1909, chap. 18], § 21.) But where one who can write has not signed his name to his will, but has instead thereof made his mark, and those taking, substantial interests under the will are instrumental in obtaining it, while other interested persons act as witnesses to the signature, clear and satisfactory evidence is required to meet the burden of proof, and if the circumstances are not satisfactorily explained they may justify a conclusive presumption that the mark is not the subscription of the testator. (1 Underhill Wills, 255.) The reason of this requirement is obvious, having in mind the impossibility of determining, by comparison with other standards, whether a mark is genuine or not, as may be done with signatures. In this case, however, the burden has been fully sustained ; by the proponent. The notary who drew the will is not related to the parties to the controversy. The proponent had nothing to do with its execution. Her daughter, with whom decedent had been on intimate terms of friendship and to whose • mother’s home she resorted and where she stayed when out of employment, had been questioned by decedent about the way to go about making her will, and had introduced her to the notary, Dargeon, who was also an undertaker. His place of business was between the hospital and the Galvin home, the [730] two places where decedent spent her time. There was nothing unusual in the will not having been drawn by a lawyer, for experience demonstrates that many wills in New York city, as well as leases and deeds, are drawn by notaries. The decedent advised with Dargeon in private on this occasion, some two or three weeks before its execution, as to her proposed will. When she finally called to execute it, on February third, a week before her death, she gave him privately the specific instructions as to her desired disposition of her estate, and said she wanted everything she possessed to go to her friend Mary Galvin in return for what she had done for her in the past, as no other person was nearer or dearer to her. At that time she told Dargeon she was in a state of excitement, felt very nervous, and would sign the will by making her mark. He knew then that she would make her mark and drew the attestation clause accordingly. She paid the notary for drawing the will. When the will had been drawn it was read aloud by Dargeon, and signed by decedent making her mark in the presence of Dargeon and the two witnesses; she declared it to be her will and requested the witnesses to sign their names thereto, and they did so sign in her presence and in the presence of each other. This is established by the testimony of Adelaide Galvin, Joseph E. Brown and William J. Dargeon. There is no testimony of any kind to contradict it, save that of Anna Gallagher, a maid at the hospital, who, tin her original examination, swore that decedent was working at the hospital on the day the will was executed (which no one denied) and gave no testimony as to anything which happened on that day bearing on the disputed issue, but when recalled, some three days afterwards, undertook to swear that on the day in question decedent, who roomed with her, had never left the hospital in the evening, and that about seven o’clock the witness went out to get some cheese sandwiches, and upon returning found decedent (who was her room-mate) still in the room, and, that after they had eaten the food they sat up and read until ten o’clock, when they retired. ■ The testimony of the witnesses established the execution of the will by decedent between the hours of eight and eight-thirty in the evening. A careful reading of the testimony of Anna Gallagher leads to the conclusion that as she admittedly had been [731] accustomed to get cheese sandwiches on Saturday evenings and eat them in the company of the decedent, she simply confused the evening in question with others. Her cross-examination and that by the surrogate sufficiently disclosed the infirmity of her memory even as to happenings on the day preceding her giving the testimony in question. Moreover, in rebuttal two witnesses were produced — William Fried and Margaret F. Tully — neither of whom was related to proponent, and both disinterested, who swore that they saw decedent at the Galvin home on the evening of February third after seven o’clock, before she went to the notary’s office, thus conclusively demonstrating the mistake made by Anna Gallagher as to the presence of decedent in the hospital at that time. It is significant that the witness Dargeon swears that when decedent made her mark it was done so faintly that he requested her to make it heavier and .she retraced it. When the contestant produced the record of the Woman’s Hospital it was found that decedent had written her name in pencil, but it evidently was done weakly or faintly for the historian of the hospital wrote it over in ink. This was some two months before she died. It is not unnatural for persons in the - position of decedent to experience some nervousness at the thought of executing a formal document, which assumes still greater importance when presented to one who has not been accustomed to business affairs. While decedent could read and write, no letters of hers to any one' were produced. She was apparently in good health but in view of the early occurrence of the fatal attack, she may well have suspected her dangerous condition. In any event, the testimony amply warrants the conclusion that for reasons which she deemed sufficient she chose to make her mark upon her will instead of affixing her signature, and that the will was executed in full compliance with every requirement of law. There is no proof of any undue influence exerted upon testator, nor was her will an unnatural one for her to make. Her only next of kin was her sister, who for twenty years had been hopelessly insane and who had been continuously confined in a public institution. Decedent visited her two or three times a year but had never contributed anything to her support, evi [732] dently feeling that she was receiving proper care and that money could not he expended in such a way as to benefit her.' That sister’s daughter testified that she had not seen her aunt in seventeen years. When decedent signed the roll in the hospital she answered the question, “Name and address of nearest relative or friend,” by giving the name Mrs. Galvin; and the address she gave as her own was that of Mrs. Galvin. There was no more nattiral thing for her to do than to leave what little estate she possessed to that friend in whose household were the only friends she apparently had. and who. furnished her- with the only substitute for a home to which in her loneliness she could go. ’ . The decree admitting the will to prohate should be affirmed; with costs to the proponent. - • Ingraham, P. J., and Laughlin, J., concurred; McLaughlin and Miller, JJ., dissented.