Collins' Will, Matter of

• Decision Date: 23 December 1982
• Citation: 458 N.Y.S.2d 987,117 Misc.2d 669
• Parties: In the Matter of Proving the Last WILL and Testament of J. Richard COLLINS, Deceased. Surrogate's Court, Cattaraugus County
• Court: New York Surrogate Court

Page 987

458 N.Y.S.2d 987

117 Misc.2d 669

In the Matter of Proving the Last WILL and Testament of J. Richard COLLINS, Deceased.

Surrogate's Court, Cattaraugus County.

Dec. 23, 1982.

Jeremiah J. Moriarty, III, Franklinville, for proponent.

Mary Jane Nevins, O.S.F., Olean, court appointed guardian ad litem.

DECISION

EDWARD M. HOREY, Surrogate.

The decision here made is on the objection of the guardian ad litem to the probate of the last will of the decedent.

The decedent, J. Richard Collins, died on February 5, 1982 at the age of thirty-eight. He is survived by his spouse, Cheryl R. Collins and two infant children, Mary Kathryn Collins, age fourteen, and John Christian Collins, age 13. Suggestive of some marital disharmony, it is noted that the decedent resided, at the time of his death, at a different address from that of his wife and children. However, it is clear that at the time of the decedent's death he was married to Cheryl R. Collins.

Following the death of the decedent, an examination of the decedent's safety deposit boxes and private papers was made to discover a will. No will was discovered. Later, on or about February 11, 1982, a three page document purporting to be the last will of the decedent was found in the safe of Collins Memorials, Inc., a corporation. This document is dated the 14th day of August, 1970. This document has been offered for probate.

In probate proceedings this court appointed Mary Jane Nevins, an attorney, as guardian ad litem to represent the interests of the two infant distributees of the decedent. At the request of the guardian ad litem, the two attesting witnesses were examined. Also examined was Attorney Jeremiah J. Moriarty, III, who is the person who discovered the will offered for probate.

In its initial state, the entire will was typewritten except for the signature of the testator and the two subscribing witnesses. In its present state, the will contains certain handwritten notations and interlineations, some of which have been dated and signed, or initialed by the decedent, and all of which were made in the decedent's own handwriting according to the testimony of the three witnesses who were sworn. Both of the subscribing witnesses testified that the handwritten notations and interlineations now present on the will were not on the will when it was executed by the decedent.

The instrument consists of three pages. It contains six numbered paragraphs. Paragraph "Fifth" contained five lengthy subparagraphs.

The changes and interlineations made by the decedent are in paragraphs "Third", "Fifth", and "Sixth".

The "Third" paragraph as originally drafted was in the form of a bequest to the Allegany Library Association in the amount of five hundred dollars. By penned notation, that bequest has been changed to provide for a bequest to Archbishop Walsh Highschool in the amount of ten thousand dollars.

The alteration to paragraph "Fifth" was to change a bequest of the residuary estate to the decedent's wife, Cheryl Collins, into a trust of the residuary to the First Trust Union Bank, Wellsville, New York, for the benefit of the decedent's children.

The remaining change in the will is to paragraph "Sixth". There, the decedent, by interlineations, deleted the names of two persons named as primary legal guardians for his children, and left unexcised the names of two alternate guardians.

Despite the interlineations and writings which have been made, all of the original provisions of the will are completely legible.

For determination is the effect of the interlineations and writings which the decedent made upon his original will after the execution of it.

The proponent of the will urges that the will be admitted to probate in its original form. The guardian ad litem urges a determination that the will be declared revoked and that testator's property be declared to pass in intestacy.

As the decisional law of this and other states attest, cases such as the one at bar are difficult. See generally annotation 24 A.L.R.2d 514-562. It is helpful if the ultimate question for resolution is kept in mind. That ultimate question always is whether the markings on the will were intended as a revocation of the complete instrument, or alternatively, were alterations or cancellations made with the intent and purpose of drawing a new will. Matter of Tremain, 169 Misc. 549, 558, 7 N.Y.S.2d 781, (Surr.Ct., Westchester Co., 1938) aff'd 257 A.D. 996, 13 N.Y.S.2d 632, aff'd 282 N.Y. 485, 27 N.E.2d 19; Matter of Sax, 25 Misc.2d 576, 579, 202 N.Y.S.2d 774 (Surr.Ct., New York Co., 1960); Matter of Akers, 74 A.D. 461, 467, 77 N.Y.S. 643, aff'd 173 N.Y. 620, 66 N.E. 1103. See generally 24 A.L.R.2d 514 at 518-519.

In the will in issue, there is wholly absent any writings which indicate an intent on the part of the testator to revoke the will. This distinguishes it from the will in Matter of Parsons, 119 Misc. 26, 195 N.Y.S. 742, aff'd 204 A.D. 879, 197 N.Y.S. 935, aff'd 236 N.Y. 580, 142 N.E. 291, where the testator had written the words "will revoked" and "this will revoked", diagonally across the face of the will and signed his name below the writing. Such writings were held indicative of an intention to revoke. In contrast, in Matter of Akers, 74 A.D. 461, 77 N.Y.S. 643, aff'd 173 N.Y. 620, 66 N.E. 1103, where there were words of revocation which were written, but the writings were on a margin of the paper and not across it, it was held that the will was not revoked. The court there stated:

"The great weight of authority is to the effect that a mere writing upon a will which does not in any wise physically obliterate, or cancel the same is insufficient to work a destruction of the will by cancellation, even though the writing may express an intention to revoke and cancel." Pg. 467-468, 77 N.Y.S. 643

Similarly, in Matter of Miller, 50 Misc. 70, 100 N.Y.S. 344, a predecessor Surrogate of Cattaraugus County (Davie, S.) held that an endorsement by the testator on the back of the will that the will was revoked was ineffective and did not revoke the will.

Note is made that no lines were drawn through the signature of the testator, nor those of the attesting witnesses. Thus, the case at bar is to be distinguished from Matter of Kuntz, 140 Misc. 598, 251 N.Y.S. 403 and Matter of Parsons, 119 Misc. 26, 195 N.Y.S. 742, aff'd 204 A.D. 879, 197 N.Y.S. 935, aff'd 236 N.Y. 580, 142 N.E. 291, which held such markings to be an effective obliteration. (See also In re McCaffrey, 174 Misc. 162, 20 N.Y.S.2d 178 and In re Kutzner, 173 Misc. 776, 19 N.Y.S.2d 13). Such holdings are on the grounds that the signature is recognized as the symbolic embodiment of the whole will. Matter of Griffith, 167 Misc. 366, 370, 3 N.Y.S.2d 925.

In the case at bar, the markings on the will were limited to the deletion of only parts of particular clauses. This is significant as it negatives an intention to cancel the complete instrument. See Matter of Sax, 25 Misc.2d 576, 579, 202 N.Y.S.2d 774. Compare Matter of Lavigne, 76 A.D.2d 975, 428 N.Y.S.2d 762, aff'd 52 N.Y.2d 1008, 438 N.Y.S.2d 294, 420 N.E.2d 92. Alternative provisions for the deleted parts were inserted. This is also significant as it is indicative of an attempt to draw a new will, not revoke an existing one. See Matter of Tremain, 169 Misc. 549, 558, 7 N.Y.S.2d 781.

Concededly there is one case where the sheer quantum of the obliterations was held significant and determinative of an intent to revoke. Thus, in Matter of Lavigne, 76 A.D.2d 975, 428 N.Y.S.2d 762 (Third Dept., 1980) aff'd 52 N.Y.2d 1008, 438 N.Y.S.2d 294, 420 N.E.2d 92, the single case relied upon by respondent, it appeared that "every one of the dispositive provisions" had been marked through. (Italics added) In addition, the testator had attempted to draft the provisions of a new will at the bottom of the original will. Stressing the totality of obliterations, the court held that they evidenced an intent to revoke even though the word "change" had been written.

In contrast, in the will in issue, only two of five dispositive paragraphs and only three of the sixteen paragraphs constituting the will have been altered. In the opinion of this court, Matter of Lavigne represents an extreme determination, and in the light of other decisional law, it can be rationalized only because of the totality of the obliterations which were made and the fact that an entirely new and different will had been drafted by the testator. Note is made that the only case cited in support of the determination made in Matter of Lavigne was Matter of Seidel, 65 A.D.2d 649, 409 N.Y.S.2d 560, an earlier determination made by the Third Department. A review of Matter of Seidel discloses that it did not deal with the question of obliteration by markings and writings, rather, there, the question was one of physical destruction as the will had been torn into pieces. Further, the decision in Matter of Seidel had, in turn, been predicated on the Court of Appeals decision of In Re Will of Bonner, 17 N.Y.2d 9, 266 N.Y.S.2d 971, 214 N.E.2d 154, wherein a will had also been cut into pieces by the testator. Thus, no case involving obliteration by markings and writings was noted in support of the decision reached in Matter of Lavigne.

There is present in the case at bar a further grounds on which to distinguish Matter of Lavigne and all other cases cited to the court or discovered by the court's review, wherein a determination has been made that alterations to the will were intended to revoke the will. That basis is the custody of the will. Here, the will was not in the custody of the decedent. It was located in a safe deposit box of a corporation to which others, as well as the decedent had access. Thus, the presumption that arises from custody of the will by the testator, viz: that obliterations were effected with an intent to revoke the will, (see Matter of Bonner, 17 N.Y.2d 9, at 11, 266 N.Y.S.2d 971, 214 N.E.2d 154 and cases...