In re the Probate of the Last Will & Testament of Reisner

Cohalan, S. The will was written by testator himself on an ordinary will blank consisting of one sheet of paper, folded over at the middle to form four pages, so that, except for the fold at the top, the paper has the appearance of two sheets of legal cap paper fastened together at the top. The testator wrote several bequests in the part of the paper left blank for that purpose, filled in the name and address of the executor appointed, and, not having sufficient room to complete the will on the first page, he continued writing on the second page, which is on the reverse side of the first page. The will is continued on the inside of the paper from the second to — 421 — the third page, and the writing ends near the top of the third page, where the instrument is signed by the testator. To read from the first to the second page one must first turn up the first page and then turn the paper half-way about or upside down, and to continue the reading from the second page to the third page with the whole paper unfolded it is necessary to again turn the whole paper end for end. The testator signed the paper where he stopped writing on the third page. He also signed on the first page at the place on the will blank where the signature to a will is ordinarily affixed, and he signed his name again at the end of the printed attestation clause on the first page. The witnesses to the will signed the attestation clause on the first page and also signed their names opposite the other signature of the testator on the first page. It is contended that the will can be read “ logically ” by beginning at the preliminary printed clause, “ In the name of God, Amen, I, Samuel Reisner,” etc., then right along through the clauses written by testator himself in the blank spaces of the form, down to the printed words, “ I hereby appoint,” etc. Proponent would then have us skip to the inside pages and read along to where testator finished his writing and signed his name, which is on the third page. We are asked then to come back again to the first page, to the clause beginning with the printed words, “ I hereby appoint,” in which Louis M. Brown, No. 787 Eighth avenue, New York city, is appointed executor. With this order of reading, testator’s signature and the signatures of the two witnesses would come next, and then would follow the printed attestation clause and the other signatures of testator and the two subscribing witnesses at the bottom of the first page. Section 21, subdivision 4, Decedent Estate Law, provides: “ There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the — 422 — request of the testator.” Proponent’s counsel contends that the end of the will is found on the first page by reading the will in the manner described above, and Matter of Field, 304 N. Y. 488, is urged as controlling authority for such an interpretation of the words “ end of the will.” The facts of the Field Case are entirely different from the facts of the case before me, and although the Court of Appeals laid down a more liberal rule than the one that had prevailed up to that time, on the question of what is the “ end ” of a will, there is no way that I can see by which even the language of the opinion can be applied to the present case. As the two witnesses did not sign their names at the end of this will, probate must be refused. Matter of Hewitt, 91 N. Y. 261; Matter of Blair, 84 Hun, 581; affd., 152 N. Y. 645. The executor named in the paper propounded as a will may tax his costs and the same will be allowed. Decreed accordingly. NOTE ON SIGNATURE AT END OF WILL. The intent of the testator is immaterial. Matter of,Blair, 84 Hun, 581, 152 N. Y. 645. It has been held that a will is signed at the end when nothing intervenes between the disposition provisions and the subscription. In re Dayger, 47 Hun, 127; In re Gilman, 38 Barb. 364. But it is also held that while the signature need not be in immediate juxtaposition with the concluding words of the instrument they must be reasonably near thereto. See In re Fult, 42 N. Y. App. Div. 593. The signature should be at the physicial termination of the testa — 423 — mentary provisions. In re O’Neil, 91 N. Y. 516; St. Vincent De Paul Sisters of Charity v. Kelly, 67 N. Y. 409. Will must be subscribed at the end and not in the center of the instrument. Matter of Dormer, 37 Misc. 57. Where the body of the will and testator’s signature were upon the first page of a sheet of note paper, and the signatures of the witnesses at the top of the fourth page, the intervening pages being blank, it is held to be a sufficient signature. Matter of Singer, 19 Misc. 679. Where a paper on the first page was a complete form of a will with an attestation clause and on the second page there were further disposing clauses signed but not attested and the disposing provisions of the two pages had no relation to each, and there was no evidence that testator’s signature was on the second page at the time of execution, held that the first page constituted the will. Matter of Mandelick, 6 Misc. 71. Where the body of a will refers to a schedule attached thereto and the body of the will is signed and attested at the end and the schedules attached and referred to in the will, it complies with the statute Matter of Brand, 68 N. Y. App. Div. 225. If a will be signed at the end thereof, it is not invalidated by a reference to a schedule which is not annexed. Thompson v. Quimbey, 2 Brad. 449; McQuire v. Kerr, 2 Brad. 244. A will is signed at the end when it is merely followed by provisions or other matter not of a disposing nature, such as the date of the will, or the attestation clause. Fouche’s Estate, 147 Pa. St. 395; Younger v. Duffy, 94 N. Y. 535. A signature in the attestation clause is at the end of the will as the attestation clause forms no necessary part of the will. Matter of De Hart, 67 Misc. 13. A signature after the attestation clause is good. Younger v. Duffy, 94 N. Y. 535; Matter of Laudy, 78 Hun, 470; Affd. 147 N. Y. 699. Where a will contains a clause appointing executors and the date of execution, below the signature of the testator, it will be refused probate. Matter of Oidney, 17 Misc. 500. A will drawn upon a printed blank covering only one page and signed — 424 — by the testator and subscribing witnesses at the foot of the page, does not comply with the statute, when the blank space in the printed form is filled up by subdivisions marked “ First,” “ Second ” provided by the words, “ See annexed sheet,” and such sheet is attached to the face of the blank by removable metal staples. Matter of Whitney,. 153 N. Y. 359. Where a will was written on a printed blank of one page with two subdivisions and subscribed at the bottom of the page, and a double sheet of legal paper containing in writing ten additional bequests was pinned to the printed blank it did not comply with the statute. In re Fult's Will, 42 N. Y. App. Div. 593. A will drawn upon a printed blank folded in the middle so as to make four consecutive pages with an attestation clause at the top of the second page and executed at that point by the testator and attesting witnesses, so that the first two pages make a complete will, is not subscribed by the testator “ at the end of the will ” when the third page contains further material and complete disposition of property in no manner connected with the first or second pages, except that the third page is numbered “ 2nd page ” and the second page is numbered “ 3rd page ”; the draftsman having passed to the third page after he had filled the first. Matter of Andrews, 162 N. Y. 1. But it was held in Matter of Field, 204 N. Y. 448, that where the testator drew his own will, using a short form printed blank, with six sheets written on one side pinned to the blank in space intended for bequests to which reference is made in the will, his signature at the end of the will was a sufficient compliance with the statute. Matter of Field, 204 N. Y. 448. Where the will was a blank form on one sheet with “carried to back of will ” written at the bottom “ continued ” at the top of the back page and at the bottom thereof “signature on face of the will” and the signature of testator and witnesses on the front page it was not such a subscription as required by the statute. Matter of Conway, 124 N. Y. 455. Where decedent’s signature was followed by a clause appointing an executor the paper was not entitled to probate. Matter of Nies, 13 St. Rep. 756. See Matter of Jacobson, 6 Dem. 298. Where a will is signed in the middle of the clause appointing an — 425 — executor, held not to comply with the statute. Sisters of Charity v. Kelly, 67 N. Y. 409. Though the testator by mistake subscribe beneath the attestation clause, it is sufficient. Cohens Will, 1 Tuck. 286; Younger v. Duffy, 94 N. Y. 635; Matter of Acker, 5 Dem. 19. Where a will is duly signed by the testator at the end thereof the fact that the attestation clause is, by mistake written on an intermediate blank page, held, not to invalidate the execution. Hitchcock v. Thompson, 6 Hun, 279. Where provisions relating to disposition of estate intervened between the signature and the attestation clause there is no signing at the end of the will as required by the statute. Matter of Sanderson, 9 Misc. 574. Name written at beginning of will. Armstrong v. Armstrong, 29 Ala. 538. Name written after attestation clause on the right. Hallowell v. Hallowell, 88 Ind. 251. Footnotes [1] See Mills Surr., Vol. Y, 10.