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

24 A.D. 531, 49 N.Y.S. 32

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1897
• Status: Published

Opinion

Green, J.:

Proceedings for the probate of the will were instituted before Surrogate Bright. Many witnesses were sworn on behalf of proponent and contestant, and the evidence was closed and the case submitted to him for final decision; but before any decision was rendered the surrogate died. The matter was then brought before his successor, who ruled that he was empowered to take up the proceedings where they were left by the deceased surrogate, and gave both parties the right to produce additional and explanatory evidence. Contestant objected to the reception of the evidence previously taken, and demanded that the witnesses be recalled and their testimony taken; and to the refusal of the court to so order, an exception was taken. Thereupon the contestant, saving her exception, recalled one of proponent’s witnesses for examination, and the latter recalled another witness.

Upon a review of the whole evidence, as taken down by the stenographer and filed as a record of the court, the court based its decision and decree admitting the will to probate. Upon the exception so taken, as aforesaid, the appellant demands a reversal of the decree.

The ruling of the court was founded upon subdivision 8 of section 2481 of the Code of Civil Procedure, Avhich is embraced in an article entitled “ Jurisdiction of the Court and Authority of the Surrogate.” That section provides that “ a surrogate in court or out of court, as the case requires, has power: * * * 8. Subject to the provisions of law, relating to the disqualification of a judge in certain cases, to complete any unfinished business pending before his predecessor in the office, including proofs, accounts and examinations.

“ 9. To complete and certify and sign in his own name, adding to his signature the date of so doing, all records or papers left uncompleted or unsigned by any of his predecessors.”

In Throop’s note to section 2481 it is stated that “ subd. 8 consists of 2 R. S. 223, part 3, ch. 2, tit. 1, § 11 * * * amended by the addition of the first and last clauses. It was held in Reeve v. Crosby, 3 Redf. 74 (1877), that this provision (section 11) authorizes the surrogate to take up a trial where his predecessor left it off, and to complete it and pronounce his decision upon the testimony taken before both. But see McNaughton v. Chave, 5 Abb. N. C. 225.”

The provision of section 11 was embraced in an article entitled “ Of Surrogates’ Courts,” prescribing the jurisdiction of the court and declaring the powers and duties of the surrogate.

“§ 11. Upon the office of any surrogate becoming vacant, his successor shall have power and authority to complete any business that may have been begun, or that was pending before such surrogate.”

Under this provision, the surrogate of Kings county held that he was empowered to take up the probate of a will at the point where it was left by his predecessor, complete the proofs and then decide the question at issue upon the whole evidence, including that which was taken before his predecessor. (Matter of Martinhoff, 4 Redf. 286, following 3 id. 74, supra.) The case of McNaughton v. Chave (supra) is to the same effect.

In Matter of McCue (17 Wkly. Dig. 501) the surrogate filed an opinion expressive of his views, but in no other manner made any findings of fact or conclusions of law. His successor proceeded upon that opinion and made formal findings of fact and a decree accordingly. Daniel, J., in delivering the opinion of the court, expressed a doubt whether the findings and decree “ made under the circumstances stated,” legally admitted the will to probate, but the decision of the court, reversing the decree, was based upon other grounds. It does not appear whether the surrogate proceeded to coirqffete the unfinished business by giving notice to the contestants, or any opportunity to introduce further proof, or that he ever reviewed the evidence taken; on the contrary, the inference from the statement in the report is that the surrogate merely proceeded upon the opinion of Surrogate Calvin, and upon that alone made up the findings. The proceedings in that case were instituted subsequently to the enactment of the present Code.

The correctness of the decison of the surrogate of New York, made twenty years ago (8 Redf. 74), has never been questioned by any court so far as the reports disclose, and we may assume that it has been accepted and frequently followed by the surrogates throughout the State as sound doctrine. Whatever doubts may now be entertained in respect to the soundness of that decision at the time it was rendered is a matter of no consequence, for we believe it was the evident purpose of the revisers of the Code to remove all doubt and uncertainty by an express provision that the surrogate, in court or out of court, shall have and possess the jurisdiction or power to complete the proofs, accounts and examinations in any business or proceeding pending before his predecessor in office, and left unfinished.

The court, in the case referred to, implied or inferred the power of the surrogate from the general provision of section 11 of the Revised Statutes. As that decision was before the revisers when they formulated section 2481, it is utterly inconceivable that they undertook to abrogate or impair the rule of law there enunciated by conferring in express terms the power to' complete the proofs and examinations. On the contrary, the effect of such amendment was to strengthen and fortify the decision and to authorize the completion of the proofs in contested proceedings as well as in proceedings uncontested. The Constitution (Art. 6, § 8) contemplates that the judge who has to decide a controverted question of- fact should have the advantage of seeing the witnesses and hearing them give their testimony; and it is a just requirement, one which a sense of propriety commends, that the evidence in a cause, when practicable, be given in the presence of those who are to adjudicate thereon. (Draper v. Day, 11 How. Pr. 441.) Still, it is competent for the Legislature to provide that, in view of particular circumstances or contingencies, the presence of a witness or witnesses before the court or judge taking cognizance should be dispensed with; and that is what the Legislature has, in effect, prescribed for the special case before us.

In the Court of Chancery the witnesses were usually examined by examiners appointed by the court for that purpose, and if a party desired an examination of the witnesses in the presence of the vice-chancellor, he was required to apply for an order, which would not be granted without sufficient cause shown. But the practice of examining witnesses before a vice-chancellor was very seldom resorted to.

If the vice-chancellor deemed it expedient that the witnesses should be examined in his presence, he would so order. Where a cause was at issue and in readiness for hearing, or it was desirable to take testimony against all the defendants, if the party wished to have the testimony taken in open court at the hearing of the cause, he was obliged to apply for an order; but such an order would not be granted without sufficient cause being shown, making it necessary or expedient to have the witnesses examined in open court, instead of being examined in the usual manner. Under that system of procedure the majority of causes were brought to a hearing and a determination solely upon the depositions returned.

The Code provides for the appointment of a stenographer by the surrogate of each county ; and he is required to take full stenographic notes of all proceedings in which oral proofs are given, and the testimony must be written out at full length from the notes and the minutes thereof; and after being properly authenticated, must be filed among the records of the court (§§ 2513, 2541, 2542.)

And the surrogate is required to file and preserve every deposition, petition and report, and to deliver to his successor all books and papers. (§ 2500.)

A provision is made for the examination of aged and infirm witnesses residing in another county by the surrogate of said county, or by a referee. (§§ 2539, 2540.) Upon the depositions so taken and returned, together with such other proof as may have been adduced before him, the surrogate proceeds to determine the matters in controversy.

In view of these directions we are unable to perceive anything in the nature or circumstances of the case that compels or requires the court to limit the effect and operation of the clause “ including proofs, accounts and examinations ” to uncontested matters or proceedings, or to insert words to that effect by way of judicial construction or amendment, or to draw a definition where the Legislature has made none. On the contrary, there are reasons of justice, necessity or expediency that may be suggested for giving full effect and operation to the language employed to express the legislative intention. If it was not designed to give surrogates this power in proceedings contested, then there was no necessity for the addition of such clause to the provision of the Revised Statutes.

We, therefore, conclude that the intent of the statute conferred upon this surrogate the ¡rower to act as he ruled he had the authority to act, and that such ruling presents no error.

Such conclusion, therefore, brings us to the consideration of the question whether the findings of the surrogate are justified by the evidence in the case.

April 18, 1890, James A. Carey died. Susan E. Hadcox and Mary R. Cody are sisters, and the only children of the deceased. The will in question was shortly after his decease found among his papers by his daughters. The will is dated May 8, 1889, and by it he gave to his daughters the use of all his property during their lives (the appellant, however, to have the use of $2,000 more than the respondent), the property then to go to his legal descendants. He also appointed both daughters executors of the will and required them to give bonds for the faithful performance of their duties as such executors. On April 26, 1890, eight days after Mr. Carey’s decease, the appellant and respondent each verified a petition, directed to the proper surrogate, to have the -will admitted to probate ; and on the same day each of them took and subscribed the usual oath as executor of said will. Joseph S. Avery had been retained to represent them as their attorney in the proceedings before the surrogate. The petition was duly filed with the surrogate on May 5, 1890. Citations were issued, returnable May 12, 1890. On the return day, on the application of Mr. Avery, attorney for the petitioners, a commission, with interrogatories annexed, was duly issued to a commissioner therein appointed, to take the examination of W. Byron Topping, one of the subscribing witnesses, who then resided in Washington, District of Columbia. The examination was duly had, the commission duly executed and returned to the court and filed therein May 19, 1890. On that day upon application of Mr. Avery, who was still acting for both petitioners, the matter was set down for hearing for May 26. 1890. On that day the other subscribing witness failed to appear, and a subpoena was, by the court, directed to be issued and served on him, returnable on the following day, and the proceeding was adjourned to that time. It appears from the evidence that, intervening the filing of the petition for the probate of the will and May 26, 1890, Susan E. Had cox had endeavored to secure sureties upon her bond as executor and had been unsuccessful. On May 27, 1890, she appeared by Mr. Searle, as her attorney, and filed her petition and affidavit, both verified on that day, asking leave to withdraw as petitioner for the probate of the will and for leave to contest the probate of the will on the ground, as stated in her petition, “ that one of the subscribing witnesses to said will did not see the testator sign the same and did not see his signature to the same, and that said Carey did not acknowledge to said Hortlirup that said instrument was his will.” Thereafter her petition was granted, and proceedings were thereupon had upon such contest, which resulted in the decree from which this appeal is taken.

The will, including the attestation clause, was, on the day it bears date, prepared by James A. Oarey. It was executed on the same day. At that time testator was sixty-five years of age. He was shown to have had experience in drafting conveyances, contracts and legal documents of a like nature; he was careful and accurate in his own business and in transacting the business of others intrusted to his care. It is in evidence that, previous to preparing the will in question, he had drafted and attended to the execution of at least five other wills, and the evidence tends to show that he was familiar with the statutory requirements for the due execution of such an instrument, and that he observed a compliance with these requirements. He at least had sufficient confidence in his own experience in, and knowledge of, the preparation of legal documents to himself prepare this instrument disposing of more than §20,000 of property, being all the accumulations of a long and busy life. On the morning of the day on which the will bears date he went to the store of George B. Hortlirup, in the village where testator resided, and in the office of the store prepared the will. It is fully established that, while he was preparing the will, W. Byron Topping, who was then a clerk in the store, was present in the office; that, when he had fully prepared the same, he asked Topping where Rorthrup was, and told Topping he was going west and was making his will as he did not know what might happen before he got back and that he wanted Rorthrup and Topping to witness the same; that he was told by Topping that Rorthrup was expected in a short time, and that thereupon the testator signed the will, at the end thereof, in the presence of Topping; that Topping saw him sign it; that he then and there declared it to be his last will and testament and requested Topping to sign the same as an attesting witness, and that the latter so signed the same at testator’s request and in his presence. The uncontradicted evidence further discloses that immediately after so signing the same Topping went into the store and said to Rorthrup, “ Oarey has got a paper here he wants you to witness; ” that thereupon they both passed into the office and the testator handed the will to Rorthrup and asked him to sign the same; that Rorthrup took the same and signed the attestation clause thereof directly over the signature of the witness Topping, in his presence and in the presence of the testator; that, at the time of signing the same, Rorthrup knew that the paper he was so signing was the will of James A. Oarey. The statutory requirements, therefore, that the will should be subscribed by the testator at the end thereof, and that at least two witnesses should sign their names as attesting witnesses thereto, at the request of the testator, were fully complied with. Therefore, the only remaining question necessary to review is whether the testator signed the same, or acknowledged his signature thereto, in the presence of the witness Rorthrup.

The witness Rorthrup testified that the testator handed the paper to him, but that he did not say it was his will; that the testator did not sign the will in his presence, and that he did not see the testator sign the same; Rorthrup says, “he saw me sign; I understood it was the will of Carey * * * because Mr. Topping told me so; he told me so when I was signing the paper. Mr. Carey was present.” Rorthrup testified that after the will had been handed to him, “I remember speaking to Mr. Topping in the office and in the presence of Mr. Carey ; I asked him how many sheets of paper there was;' there was but one sheet of paper; I can’t remember exactly what I said, but I spoke about there being only but one sheet of paper.” Witness further testified: “I knew at that time that in wills there was something essential about the number of sheets of paper. I understood then that the number of sheets of paper in a will was an essential and important matter to be considered, and remarked about it.” So it appears that before signing the paper which had been handed to him, and which he knew to be the will of Hr. Carey, the witness, who was impressed with the fact that it was essential to know, before signing, the extent and amount of paper used in its preparation, examined the same. The witness Rorthrup further testified that while the will was in his possession, and before he signed the same, and in the presence of the testator, the witness W. Byron Topping said to Rorthrup that that was Mr. Carey’s will. Topping testifies that, after the will had been handed to Rorthrup, “ I says, ‘ It is his will; I have witnessed it, and he wants you to witness it; ’ George sat down, and he took hold of it and he says: ‘We ought to know how many sheets there is,’ and made the remark, £ There is one.’ ” The witness Rorthrup, however, testified that, although Topping stated to him in the presence of Mr. Carey that it was the latter’s will, in doing so he “ kind of whispered,” and that Hr. Carey was very deaf. The witness Topping contradicts this and says that he££ spoke in an ordinary tone.” There is also abundance of evidence showing that testator’s hearing was only slightly defective and that he could hear conversation' carried on in ordinary tones. Rorthrup himself testified : “ Mr. Carey was not so deaf but that I could carry on conversation with him, and he did business up to the time of his death; dealt with business men and talked with them; he was not so deaf but that he could do that.” Mr. Rorthrup gives no reason whatever for any secrecy in the communication made to him. Only the testator and the witnesses were present, either in the office or in the store, so far as appears from the evidence; and, if Mr. Topping had desired to communicate these words to Mr. Rorthrup without testator’s knowledge, .it would not have been necessary to whisper if the testator had been afflicted with deafness to the extent testified to by Rorthrup. Certainly, there is nothing to show that the testator himself desired to conceal anything from those who had been summoned by him or • at his instigation to witness his will. He prepared his will in the office, and Topping, the clerk, was present during most of the time consumed in its preparation; he had declared it to be his last will and testament to Topping, had requested him to sign it as a witness, and had deputized and instructed him to procure Mr. Horthrup as the other witness, which had been done, and, upon the appearance of Mr. Horthrup, the testator delivered to him and into his possession the will, which was, to some extent at least, examined by the witness in the presence of the testator. It further appears from the evidence of the witness Topping that just previous to the signing of the attestation clause of the will by Horthrup, and in the presence and hearing of Horthrup, testator said he was going west and had made his will, and then asked Mr. Horthrup to sign as a witness. The witness Horthrup does not deny this. (In these respects, as well as in several others, the present case differs from that of Abercrombie, recently decided by this court. [Matter of Abercrombie, ante, p. 407.]) After all this had occurred, Horthrup signed the following statement, which is directly after the name of James A. Carey, at the end of the will in question : “ The above instrument, consisting of sheet of paper, was at the date thereof subscribed by James A. Carey in the presence of us and each of us; he at the time of making such subscription acknowledged that he made the same and declared the said instrument so subscribed by him to be his last will and testament, whereupon we then and there, at his request and in his presence and the presence of each, subscribed our names as witnesses thereto.”

The witness Horthrup, it appears, is an active business man and has been for many years. He testified : “ I am engaged in the mercantile business, keeping a general store at Deansville; I am also a farmer, own four or five farms, I can’t tell without figuring up; am the manufacturer of vinegar and cider in a company; a grist mill, and I sell hop poles and shingles and lots of things outside of any firms; am a general dealer in whatever I think I can make anything on; have been an agent of a western loan company, and have sold some of those western mortgages. My wife had an interest in the estate of her father, and I looked after her interest. I was not executor or administrator. It was the same as to my mother-in-law’s estate. I think I have been a notary eight years; as notary I have taken acknowledgments of papers, any paper that was presented to me, pension paper’s, mortgages, assignments, deeds; I have written mortgages, deeds and assignments for other people and superintended their execution and acknowledgment, and I procured my appointment as notary for that purpose.” In view of the multifarious cares and duties which must have devolved upon this very active and energetic business man, and which would necessarily, to a great extent, banish from his mind transactions not intimately connected with his own affairs and interests, and in view of the fact that the witness ISTortlirup does not deny the evidence of the witness Topping, that the testator declared this instrument to be his will, in the presence of ISTortlirup, before he signed the same, and in view of the evidence of Tor thru p himself, that he had forgotten that he had signed his name as witness to this will, and that the death of Mr. Carey within the year following the making of his will which was witnessed by Torthrup, failed to refresh his recollection,' and that he only remembered it after Mr. Hadcox, the husband of the contestant, had informed him that he was one of the witnesses who had subscribed the will — in view of all this, it would not be strange that he had failed to carry in his mind all the details of the execution of the will; and the statement which he signed at the time of the transaction, that James A. Carey “ acknowledged that he made the same and declared the said instrument so subscribed by him to be his last will and testament,” may well be relied upon as the veritable and reliable record of what did actually transpire at that time. If the fact of his signing an instrument of this character, which he knew at the time was the disposition, by his friend of twenty years’ standing, of all the property he possessed, had completely passed from his memory within less than one year from the transaction, it may readily be inferred that lapse of memory and want of recollection fully explain his evidence as to what did not take place at that time when he testifies that the testator did not acknowledge the execution of the will. Certainly this court would not be authorized in overthrowing the testamentary bequests contained in the will which was witnessed by Mr. Torthrup, upon his evidence concerning what, as he says, was left undone at the time of the execution of the instrument.

There is no question as to the intention of testator. The will is in his own handwriting and speaks for itself. His acts and conversation at that time indicate an active desire upon his part to have that instrument properly and legally executed. This is shown most conclusively by the will itself. It appears upon its face to be in every respect a will executed in exact conformity to all the statutory requirements, and, with the exception of the signatures of the two witnesses, every word in the will is in the handwriting of testator, even to the place of residence of each witness.

In The Matter of Cottrell (95 N. Y. 339) it in said: “ It was always considered to afford a strong presumption of compliance with the requirements of the statute in relation to the execution of wills that they had been conducted under the supervision of experienced persons, familiar, not only with the forms required by the law, but also with the importance of a strict adherence thereto. * * * The presumptions arising from the certificate of the subscribing witnesses and the supervision of an experienced person that the requisite formalities were complied with, are fortified by the acts and conduct of the testator. * * * He had * * * ample time and opportunity to supply any defects in its execution, if any existed.” “ The testator had not only once correctly gone through the ceremony of executing a will, but, by d/r awing the attestation clause in question, he had at the time necessarily brought before his mind each one of the conditions imposed by the statute as necessary to its valid execution.”

Again, in the Cottrell case (at p. 340) are words so appropriate to this case that they would seem to have been prompted by facts precisely like those in the case under review : “ Ho controversy can arise in this case over any question as to the real intention of the testator in the disposition made by this will of his property, for not only were his wishes deliberately formed, but they are recorded in his own handwriting, which implies care and deliberation on his part in framing its provisions and directions. It is the duty of the court to carry into effect a testator’s intentions when they can be discovered, provided they do not contravene any provision of law.”

It is too late to claim that the facts making due execution must all, or any of them, be established by the concurring testimony of the two subscribing witnesses; both of these witnesses must be examined, but the will may be established even in direct opposition to the testimony of both of them.

It is very clear to me that there was a compliance with every requirement of the statute necessary to be observed in the execution of this instrument. Certainly there was a substantial compliance with the statute, and that is always sufficient. It was not necessary for this testator to use any particular form of words in the publication of the will. As was said in Matter of Hunt (110 N. Y. 281): “We think that it is a sufficient compliance with the statutory requirements if, in some way or mode, the testator indicates that the instrument the witnesses are requested to subscribe as such is intended and understood by him to be his executed will. In probate cases the courts look to the substance of the transaction and see that there was no opportunity for imposition or fraud.”

In Lane v. Lane (95 N. Y. 501) the language is peculiarly applicable to the case at bar. “The testator knew, and the witnesses understood from his acts and conduct, as he intended they should, that the instrument then executed was his will. The statute upon this point exacts nothing more.”

Again, in Matter of Pepoon (91 N. Y. 255) the court held: “ Where the attestation clause to a will is full and complete it is not always essential that all of the particulars required by the statute to constitute a valid execution of the instrument should be expressly proved.”

The Surrogate’s Court found as a fact that this will was duly subscribed by the testator, and that the same was.duly declared and published by him to each of the witnesses as his last will and testament in the manner provided by statute. We are of the opinion that such finding is fully substantiated by the evidence, and that the exceptions present no error justifying a reversal of the decree, but that it should be affirmed, with costs against the appellant, Susan E. Hadcox, personally.

All concurred.

Decree of the Surrogate’s Court affirmed, with costs against the appellant, Susan E. Hadcox, personally.