In re the Estate of Zaharis

91 A.D.2d 737, 457 N.Y.S.2d 995, 1982 N.Y. App. Div. LEXIS 19622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1982
• Status: Published

Opinions

—Appeal from a decree of the Surrogate’s Court of Broome County (Keane, S.), entered August 6, 1981, which admitted to probate an instrument purporting to be the last will and testament of the deceased. Aspasia E. Zaharis, also known as Tessie Zaharis, died April 11, 1977, survived solely by her brother Nicholas Stamatakos. The instrument offered as the last will and testament of Tessie Zaharis consisted of a three by five inch lined file card dated December 7, 1975, written on both sides, which includes decedent’s signature perpendicular in the right-hand margin on the front side, and the signatures of both attesting witnesses on the lower right portion of the back side. Stamatakos filed objections contending that decedent was not of sound mind, and that the document was vague, the product of fraud and undue influence and not properly executed pursuant to statutory formality (EPTL 3-2.1). After a hearing, the Surrogate determined that decedent was of sound mind and competent to make a will on December 7, 1975, that the objections concerning fraud and undue influence were without substance, that the document was not vague, and that decedent’s signature in the margin on the front side of the instrument satisfied the requirements of EPTL 3-2.1 (subd |a], par [1]). A decree admitting the instrument to probate was entered on August 6, 1981. This appeal ensued. We agree with the Surrogate’s findings as to testamentary capacity, vagueness, undue influence and fraud as these conclusions are supported in the record and need not be disturbed. However, as to his conclusion that the instrument satisfied the requirements of EPTL 3-2.1 (subd [al, par 111), we must disagree. The new “statute of wills” clearly mandates that the testator must sign the will “at the end thereof” thus retaining a requisite formality which has continued for well over a century (see Matter of Andrews, 162 NY 1; Matter of Whitney, 153 NY 259; Matter of O'Neil, 91 NY 516). This statutory provision requiring the subscription of the name to be at the end is a wholesome one and was adopted to remedy real or threatened evils; it should not be frittered away by exceptions, and while its provisions should not be carried beyond the policy of its framers, that policy should not be defeated by judicial construction (Sisters of Charity v Kelly, 67 NY 409, 416). While the court must determine whether a testamentary instrument is signed at the end as a matter of law (Matter of Hewitt, 91 NY 261, 264-265), practically speaking resolution of the issue involves a factual determination after careful resolution of the “factual evidence presented to the eye” (Matter of Young, 36 Misc 2d 718). The instrument at bar, on the front and dated side, refers to funeral arrangements and continues on the reverse side with dispositive provisions concluding three and one-half lines from the bottom of the card at a point which is clearly the physical end of the instrument as well as its logical and natural end (see Matter of Field, 204 NY 448, 457). Further examination of the instrument readily demonstrates, contrary to the testimony of Fotista Halikias, a subscribing witness who testified that decedent signed in the margin on the front side because there was no room, that there was, in fact, ample room for the decedent to sign at the end and for the attesting witnesses to sign thereafter. This was the place where the draftsman stopped writing in the consecutive order of composition. The instrument before us, when read consecutively as the mass of mankind would read it, does not have the signature at the physical and natural end thereof (cf. Matter of Field, supra). The signature does not even appear anywhere on the same page and the instrument does not comply with the statutory requirement as a matter of law. In reaching our conclusion we have not ignored the authorities urged by respondents and to some degree relied upon by the Surrogate, but point out that, without exception, they involve different provisions, are clearly distinguishable or are confined to their own peculiar facts. For example, Matter of Snide (52 NY2d 193) involved a different requisite formality or provision and beyond that was “a very unusual case” (id., at p 196) which was clearly decided “|o]n these narrow facts” (id., at p 197). To give our approval of the instrument executed in a manner contrary to the mandate of the statute would be to deny a wholesome and necessary purpose and to reject long-established and consistent precedent. We decline the invitation to do so. Decree reversed, on the law, without costs, and petition for probate denied. Mahoney, P. J., Sweeney, Main and Casey, JJ., concur.