In re Proving the Last Will & Testament of Bitzer

Foley, S.: The evidence submitted by the contestants on the various issues was utterly insufficient to justify the submission of any of the questions contained in the order framing issues to the jury. The soundness of mind of the testatrix was conceded. No proof was adduced on the issues of fraud and undue influence to meet the standards laid down by the authorities in this State. (Matter of Reuf, 180 App. Div. 203; affd., 223 N. Y. 582; Matter of Kindberg, 207 id. 220; Matter of Price, 204 App. Div. 252, 253.) On the question dealing with the execution of the will, the testimony of the three subscribing witnesses clearly established compliance with the Decedent Estate Law (§ 21). Their description of the circumstances surrounding the execution showed that the testatrix was, by reason of physical disability, unable to sign the will without assistance. One of the subscribing witnesses, a lawyer, guided the hand of the testatrix in signing her name. The disability of the testatrix only affected the use of her right arm and hand and did not impair her mental faculties. The law only required the making of a mark and even permitted writing of the signature by another person provided the testatrix acknowledged the signature as her own. The testimony of the handwriting expert that in his opinion the signature could not have been made by the decedent, is utterly at variance with the facts as testified to by the other witnesses. The expert’s testimony, if anything, corroborates the actual happenings as described by the attesting witnesses. In Matter of Caffrey (174 App. Div. 398; affd., 221 N. Y. 486) the Appellate Division, First Department, held that expert testimony in such case was properly excluded by the surrogate. (See, also, Matter of Kennedy, 229 N. Y. 567, affg. 190 App. Div. 896, affg. 106 Misc. 216, Fowler, S.) In Matter of Kearney (69 App. Div. 481), where the facts were very similar, the court held that the testimony of an expert tending to prove that the signature of a person, whose hand was guided by someone else, was insufficient in the face of the testimony of the observers of the testamentary act. The court in effect held that a testator who is physically unable to sign his name to his will may call upon another person to aid him in doing so, even to the extent of holding his hand and guiding it. The extent of the aid does not affect the validity of the signature if the signing is in any degree an act of the testator, acquiesced in and adopted by him. The testimony of Miss Bruere, an official of the Central Union Trust Company, and of Mr. King, the draftsman of the will, conclusively establishes that the testamentary desires of the testatrix were incorporated in the propounded paper. [434] Upon the uneontradicted evidence here and pursuant to the authorities cited, the surrogate must direct a verdict in favor of the will. Submit decree admitting the will to probate upon the special and general verdict as directed by the surrogate.