In re Field's Will

• Decision Date: 20 February 1912
• Citation: 97 N.E. 881,204 N.Y. 448
• Parties: In re FIELD'S WILL.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 448

97 N.E. 881

In re FIELD'S WILL.

Court of Appeals of New York.

Feb. 20, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the probate of the last will and testament of Warren B. Field, deceased. From an order of the Appellate Division (144 App. Div. 737,129 N. Y. Supp. 590) affirming a decree of the Surrogate Court denying probate, an appeal was taken. Reversed, and proceeding remitted, with directions to admit will to probate.

A paper purporting to be the last will and testament of Warren B. Field, deceased, dated January 10, 1910, was refused probate by the surrogate of Kings county on the 25th of July, 1910. The American Society for Psychical Research, one of the legatees not cited in the Surrogate's Court, appealed to the Appellate Division, where the order of the surrogate was unanimously affirmed, and thereupon an appeal was taken to this court.

The paper was partly written and partly printed; but all the writing was by the decedent's own hand. In drafting it, a printed form was used, consisting of one sheet, at the head of the first page of which the printed part was as follows: ‘In the name of God, Amen. I, ....., being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament as follows: First, after all my lawful debts are paid, I.’ Then followed a blank space of five or six inches. Near the bottom of the sheet was the following printed matter: ‘I hereby appoint ..... to be execut ... of this my last will and testament, hereby revoking all former wills. In witness whereof I have hereunto subscribed my name and affixed my seal the ... day of ..... in the year of our Lord one thousand, nine hundred ..... Witnesses.’

The first blank in the printed form was filled with the name of the decedent, and the last blanks with the name of the Kings County Trust Company, as executor, and the date in the clause commencing ‘In witness whereof.’ In the blank space of five or six inches, and directly beneath the printed line reading, ‘First, after all my lawful debts are paid, I,’ the decedent wrote as follows: ‘will and direct that my estate be settled as per the provisions of the pages hereto attached and numbered from one to six inclusive and this is to stand unchallenged and unchanged in any form provided I decease before a will is drawn by my attorney.’ Immediately after these words in said blank space, there was attached, by two pins, six sheets in the handwriting of the decedent, numbered by him at the top consecutively from one to six, which contain the disposing provisions of the will. The first of the attached sheets begins as follows: ‘January 10, 1910. Provisions which I desire made in my will and which should I pass away before will is drawn that I desire executed exactly as though drawn in an iron clad legal form. Therefore, I, Warren B. Field, of 42 Garden Place, Brooklyn, N. Y., do appoint as my attorney to draw said will the law firm of George V. Brower, Temple Bar, Brooklyn, N. Y., and as executor of my said will the Kings County Trust Company of Brooklyn, N. Y., under the following positive directions and instructions, to wit.’ Then follow the testamentary dispositions made in great detail. The last sentence of the sixth sheet of those attached is simply a direction to pay a certain fund in various proportions to three individuals.

Nothing was written in the blank spaces of the printed form, except as stated. The signature of the decedent was written in the usual place on the right-hand side at the bottom of the printed form directly beneath the clause commencing, ‘In witness whereof,’ as filled out with the date. The signatures of the two witnesses were to the left of the signature of the decedent, and right beneath the printed word ‘Witnesses' on the form. Below the signatures was a printed attestation clause; but it was not filled out or signed. When the paper was signed by the decedent and the two witnesses, the six separate pages were already attached in the manner above described. Due proof of the execution of the paper as a will in compliance with the requirements of the statute was shown by the testimony of the subscribing witnesses. The original paper, furnished for use on this review, reads continuously and naturally from the beginning to the end thereof; each of the ‘attached sheets' being written on one side only, so that it can be conveniently turned over backward in reading the instrument in the usual way.Miles M. Dawson, for appellant.

Walter Shaw Brewster, for respondent.

VANN, J. (after stating the facts as above).

The surrogate refused probate, because the paper purporting to be a will was not ‘subscribed by the testator at the end’ thereof as required by statute, and the decree was affirmed by the Appellate Division for the same reason. As the essential facts were stipulated and the original paper itself is produced as one of the facts agreed upon, the question whether it was signed at the end is a question of law. The entire printed form was treated below as the first page, the sheets numbered from one to six as succeeding pages, and thus the conclusion was reached that the decedent did not sign at the end of the paper. When read in this way, the instrument does not read naturally or consecutively, and does not make sense. The physical position of the six sheets, the place and method of attaching them, and the closing paragraphs at the bottom of the printed form are substantially ignored. The natural order of reading the paper is subverted and an artificial order substituted, not to aid, but to overturn, the obvious intention. The natural order of reading it is to begin with the opening words on the printed blank and, continuing with form and sense reasonably connected, to read the first of the numbered sheets, and, turning it over in the usual way with legal papers, to read the other sheets in their actual order, and after the last has been read to turn that over also, when the closing paragraphs of the printed form follow, the end of the instrument is reached, and no part thereof follows the signature. Who would read it in any other way, unless he wished to destroy it as a will? Who would turn over the six sheets without reading them, read the testimonium clause, and then turn back to read the rest? In reading an ordinary card calendar with the record of the month of December printed on the card itself and descriptive matter printed above, with the records of the other months on slips attached in the usual way, that of January being on top, who would not regard December as the end, both of the calendar and the card? The slips become by the place and method of attachment virtually embodied in the card. So the six sheets of the paper in question are part of the body of the will, being physically incorporated therein, and not, as in some of the cases, wholly without the body and merely referred to therein. The essence of the paper subscribed is...