In re Proving the Last Will & Testament of Heller

Appellate Division of the Supreme Court of New York

In re Proving the Last Will & Testament of Heller

222 A.D. 64, 225 N.Y.S. 244, 1927 N.Y. App. Div. LEXIS 7798

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 2, 1927

StatusPublished

Cited by1 cases

This text of 222 A.D. 64 (In re Proving the Last Will & Testament of Heller) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Proving the Last Will & Testament of Heller, 222 A.D. 64, 225 N.Y.S. 244, 1927 N.Y. App. Div. LEXIS 7798 (N.Y. Ct. App. 1927).

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Opinion

Proskauer, J.

The surrogate has denied probate of an alleged will upon the negative answer of a jury to the question as to whether the testatrix declared to each of at least two of the subscribing witnesses that the offered paper was her last will and testament. There were three subscribing witnesses. One of them testified that the decedent stated in the presence of the three of [65]*65them, when asked if she knew what they came for, that she knew they came to sign as witnesses “ for my last will.” The document was based on a printed form, the blanks in which were filled out by one of the subscribing witnesses in the presence of the testatrix and the other two witnesses pursuant to instructions then given by the testatrix to one of the witnesses, partly in English and partly in Slovene, and by him, in turn, dictated to the scrivener. After the document was prepared one of the subscribing witnesses read it aloud to her in the presence of the other two. The instrument began with the conventional phraseology to the effect that the testatrix declared “ this to be my last will and testament.” The testatrix thereupon read the will herself. This testimony was substantially corroborated by the other two subscribing witnesses and the record discloses no material contradictions in their testimony and no suspicious circumstances. The law does not require that the request to the subscribing witnesses be made in any set form of language. It is sufficient to justify probate if, as here, it is apparent that the testatrix and the witnesses knew that the paper was the last will of the testatrix, that in substance she declared it to be such, and indicated her wish that the subscribing witnesses function. When these essentials appear there is nothing in the policy of the law to justify the defeat of the plain intent of the testatrix.

The decree appealed from should be reversed, the verdict of the jury set aside and a decree made admitting the paper to probate.

Dowling, P. J., Merrell, Finch and McAvoy, JJ., concur.

Decree appealed from reversed, the verdict of the jury set aside and a decree made admitting the paper to probate. Settle order on notice.

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Proskauer, J.

The surrogate has denied probate of an alleged will upon the negative answer of a jury to the question as to whether the testatrix declared to each of at least two of the subscribing witnesses that the offered paper was her last will and testament. There were three subscribing witnesses. One of them testified that the decedent stated in the presence of the three of [65]*65them, when asked if she knew what they came for, that she knew they came to sign as witnesses “ for my last will.” The document was based on a printed form, the blanks in which were filled out by one of the subscribing witnesses in the presence of the testatrix and the other two witnesses pursuant to instructions then given by the testatrix to one of the witnesses, partly in English and partly in Slovene, and by him, in turn, dictated to the scrivener. After the document was prepared one of the subscribing witnesses read it aloud to her in the presence of the other two. The instrument began with the conventional phraseology to the effect that the testatrix declared “ this to be my last will and testament.” The testatrix thereupon read the will herself. This testimony was substantially corroborated by the other two subscribing witnesses and the record discloses no material contradictions in their testimony and no suspicious circumstances. The law does not require that the request to the subscribing witnesses be made in any set form of language. It is sufficient to justify probate if, as here, it is apparent that the testatrix and the witnesses knew that the paper was the last will of the testatrix, that in substance she declared it to be such, and indicated her wish that the subscribing witnesses function. When these essentials appear there is nothing in the policy of the law to justify the defeat of the plain intent of the testatrix.

The decree appealed from should be reversed, the verdict of the jury set aside and a decree made admitting the paper to probate.

Dowling, P. J., Merrell, Finch and McAvoy, JJ., concur.

Decree appealed from reversed, the verdict of the jury set aside and a decree made admitting the paper to probate. Settle order on notice.

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222 A.D. 64, 225 N.Y.S. 244, 1927 N.Y. App. Div. LEXIS 7798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proving-the-last-will-testament-of-heller-nyappdiv-1927.

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