In re Diehl's Will

New York Surrogate's Court

In re Diehl's Will

112 N.Y.S. 717

DecidedMay 5, 1908

StatusPublished

This text of 112 N.Y.S. 717 (In re Diehl's Will) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Diehl's Will, 112 N.Y.S. 717 (N.Y. Super. Ct. 1908).

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Opinion

BECKETT, S.

It was held in the case of Hewitt v. Hewitt, 5 Red. Sur. 271, that where there is a fatal defect in a will, which appears clearly upon its face, which cannot be cured by averment or proof, the surrogate is not required to enter upon formal proof of the in[718]*718strument, but may reject it at once. The paper here propounded appears to have been written upon a printed blank, being “John Polhemus’ Printing Company Blank No. 935, A Will.” Upon the first page thereof there is certain printed matter, and a paragraph in writing, and the signature “Martha. M. Diehl,” following which there is an attestation clause and what purports to be the signatures of Moritz J. Schwartze and Mrs. Annie Schwartze as subscribing witnesses. The second page of the paper is entirely blank, but the third page is fully written, and sets forth a part of- paragraph second (the first part thereof being on the first page), all of paragraphs third, fourth, fifth, sixth, and a part of paragraph seventh. Upon the fourth page the body writing continues for half a page, ending abruptly, without any signature subscribed. The body writing throughout the entire instrument appears to be in the same hand. Our statute requires that a will must be subscribed at the end. This paper does not comply with the requirements of the statute, and so appears from the face thereof, and I will reject it. Matter of Andrews, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294.

Special guardian’s objections sustained. Submit decree and decision on notice.

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BECKETT, S.

It was held in the case of Hewitt v. Hewitt, 5 Red. Sur. 271, that where there is a fatal defect in a will, which appears clearly upon its face, which cannot be cured by averment or proof, the surrogate is not required to enter upon formal proof of the in[718]*718strument, but may reject it at once. The paper here propounded appears to have been written upon a printed blank, being “John Polhemus’ Printing Company Blank No. 935, A Will.” Upon the first page thereof there is certain printed matter, and a paragraph in writing, and the signature “Martha. M. Diehl,” following which there is an attestation clause and what purports to be the signatures of Moritz J. Schwartze and Mrs. Annie Schwartze as subscribing witnesses. The second page of the paper is entirely blank, but the third page is fully written, and sets forth a part of- paragraph second (the first part thereof being on the first page), all of paragraphs third, fourth, fifth, sixth, and a part of paragraph seventh. Upon the fourth page the body writing continues for half a page, ending abruptly, without any signature subscribed. The body writing throughout the entire instrument appears to be in the same hand. Our statute requires that a will must be subscribed at the end. This paper does not comply with the requirements of the statute, and so appears from the face thereof, and I will reject it. Matter of Andrews, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294.

Special guardian’s objections sustained. Submit decree and decision on notice.

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Bluebook (online)

112 N.Y.S. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-diehls-will-nysurct-1908.

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