In re Will of Stever

• Decision Date: 29 December 1944
• Parties: In the Matter of the Probate of the Will of SARA N. S. STEVER, Deceased. CHARLOTTE M. ROOT et al., Appellants; JOHN H. WINTERS, as Executor of SARA N. S. STEVER, Deceased, et al., Respondents.
• Court: New York Supreme Court

268 A.D. 559

52 N.Y.S.2d 348

In the Matter of the Probate of the Will of SARA N. S. STEVER, Deceased. CHARLOTTE M. ROOT et al., Appellants; JOHN H. WINTERS, as Executor of SARA N. S. STEVER, Deceased, et al., Respondents.

Supreme Court of New York, Third Department.

December 29, 1944

APPEAL from a decree of the Columbia County Surrogate's Court (SPEED, S.), entered November 23, 1943, admitting an instrument to probate as the will of Sara N. S. Stever deceased.

COUNSEL

Frank B. Holsapple, attorney (William E. J. Connor of counsel), for appellants.

John C. Dardess, attorney for proponent-respondent.

HILL P. J.

Appeal from a decree of the Columbia County Surrogate's Court which admitted an instrument to probate as the last will and testament of Sara N. Smith Stever. The sole objection presented and litigated was that the instrument was not executed in accordance with the statute. The objectors and appellants are first cousins of decedent. The will consisted of seven sheets of ruled paper. It was signed by the testatrix and witnesses at the end of the attestation clause, which was written on one of the sheets, and by the testatrix at the bottom of each of the six other sheets. The date, July 30 1942, appears at the beginning. The instrument was executed by the testatrix and witnessed in October, 1942, by a father and daughter who were neighbors. The father says that he saw several sheets, but did not count them; the daughter that the testatrix took several papers which were folded together from her bag, selected one and placed it on top and after saying that it was her will, signed it as did the subscribing witnesses; that there were more than two or three sheets 'there were several papers.' A neighbor who went to the home of testatrix during her illness and stayed for thirty-five days, says that on December 28, 1942, testatrix asked to have her will read, which with securities was in 'a secret place * * * in the wall' of the bedroom. She read the will to the decedent and identified each of the seven sheets offered for probate as being in the envelope which she took from the wall. Also at a later date during her stay the decedent asked that the will be gotten so that she might read it. As of Thursday, October 22, 1942, the decedent made an entry in her diary: 'South wind. Mabel and her father came to witness my will. Then Mabel took me to the doctor. Got two pounds of lamb at $.15, bread and sticky tape.' The seven sheets of this holographic will were not physically joined together, but the proof establishes testatrix' intent and understanding that collectively they were one instrument and her will.

The purpose of the statute is to prevent fraudulent changes in wills. It has been said that such changes are rare, and that a too rigid construction of the integration theory is apt to do more harm than good. (Matter of Field, 204 N.Y 448, 455.) When, as in this case, the authenticity of the instrument has been clearly established, and a substantial...