Farrell's Estate, In re

• Decision Date: 05 August 1960
• Citation: 25 Misc.2d 607,206 N.Y.S.2d 328
• Parties: In re ESTATE of Mary FARRELL. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 328

206 N.Y.S.2d 328

25 Misc.2d 607

In re ESTATE of Mary FARRELL.

Surrogate's Court, New York County.

Aug. 5, 1960.

Raymond A. McCourt, New York City, for Florence Skillan, executrix, petitioner.

Humes, Smith & Andrews, New York City, for Helen McG. Stevenson, respondent.

Webster, Sheffield & Chrystie, New York City, for Catherine U. Hill, respondent.

George R. McCormick, Great Barrington, Mass., and William J. Narin, Port Washington, for Valentine Morelli and others, respondents.

Irwin E. Schlussel, New York City, Special Guardian for unknown heirs, respondent.

Reynolds, Richards, Ely & LaVenture, New York City (Richard L. Morgan and Chester J. Dodge, Jr., New York City, of counsel), for Young Women's Christian Association Retirement Fund, respondent.

JOSEPH A. COX, Surrogate.

Decedent, a resident of this county, died in Great Barrington, Massachusetts on July 27, 1959. An instrument executed by her in Massachusetts has been submitted for probate. The facts regarding its execution are undisputed. The instrument was written, upon instructions of the decedent, by a friend of forty years standing and signed by the decedent on April 13, 1959 but it was not witnessed. Subsequently and on July 20, 1959 certain additions were written in by another person at the request of the decedent. These consist of a legacy of $1,000 and a direction that all expenses be paid first. These additions appear below the signature of the decedent. On the same day three persons signed as witnesses after the decedent had acknowledged her signature and declared the paper to be her will. Their signatures appear below the aforementioned additions.

It is alleged in the petition that decedent's estate consists solely of personal property and that she left no living relatives. The special guardian for unknown distributees has filed objections to the probate of the instrument upon the ground that it was not signed by the decedent at the end thereof. The proponent has moved to strike out the objections and to admit the propounded instrument to probate.

Section 22-a of the Decedent Estate Law reads as follows:

'Validity of wills executed without the state

'A will executed without this state in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided, such will is in writing and subscribed by the testator.'

That section was added in 1919. At the same time section 23 of the Decedent Estate Law was amended. The applicable part of the latter section is:

'What wills may be proved

'A will * * * of real or personal property executed without the state in the mode prescribed by the law, either of the place where executed or of the testator's domicile, provided such will is in writing and subscribed by the testator, may be admitted to probate in this state.'

All parties agree that the propounded instrument would be entitled to probate in Massachusetts. Chapter 191, Section 1 of the General Laws of that Commonwealth states:

'Every person of full age and sound mind may by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal, except an estate tail, and except as is provided in this chapter and in chapters one hundred and eighty-eight and one hundred and eighty-nine and in section one of chapter two hundred and nine. A married woman, in the same manner and with the same effect, may make a will.'

The Supreme Judicial Court of Massachusetts held in Meads v. Earle, 205 Mass. 553, 91 N.E. 916, 29 L.R.A.,N.S., 63, that there...