In re Zaiac's Will

• Decision Date: 17 January 1939
• Citation: 18 N.E.2d 848,279 N.Y. 545
• Parties: In re ZAIAC'S WILL. In re TAYLOR.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 545

18 N.E.2d 848

In re ZAIAC'S WILL.

In re TAYLOR.

Court of Appeals of New York.

Jan. 17, 1939.

Proceeding in the matter of the petition of Julia Taylor to prove the last will and testament of Walter Zaiac, late of the county of Kings, deceased, wherein objections were filed by Sylvester Gruszka, Consul General of the Republic of Poland, as attorney in fact for Hipolite Zajaczkowski and others, next of kin of Walter Zaiac, deceased, and by Oswald M. Murphy as special guardian of Franciszek Zajac and another, infants. From an order of the Appellate Division, Second Department, 255 App.Div. 709, 718, 5 N.Y.S.2d 897, modifying decree of the Surrogate's Court, Kings County, 162 Misc. 642, 295 N.Y.S. 286, admitting the will to probate, Julia Taylor, individually and as executrix according to the tenor of the last will and testament of Walter Zaiac, deceased, appeals.

Reversed in part and matter remitted, with instructions. Appeal from Supreme Court, Appellate Division, Second Department.

Fred L. Gross, of Brooklyn, for appellant.

Charles H. Kelby, of New York City, for respondent.

Oswald M. Murphy, of Brooklyn, special guardian, in pro per.

HUBBS, Judge.

Decedent, born in Poland, enlisted in the United States army on June 1, 1917. He was sent to various military camps and was stationed at Camp Mills, Long Island, from September 10, 1917, to the time he went to France on October 29, 1917. While at that camp he took out a war risk insurance policy for $5,000, naming his sister, Julia Taylor, as the beneficiary, and the brother, Hipolite, as the alternate beneficiary. While in the Lorraine sector he took out another policy for $5,000, naming his sister, Julia Taylor, as beneficiary. He was discharged from the army for disability on November 26, 1918, and on February 13, 1919, he was confined in the Kings Park State Hospital, and was adjudged incompetent in September, 1919. He died in 1934.

During the fifteen years of his incapacity the government paid certain sums to him, under his insurance policies, which sums have accumulated and now form the whole of his estate. The principal of the insurance policies is not here involved. The proceeds of the policies go to the sister as the named beneficiary. But the amounts paid monthly to the incompetent became his property, and that is the property here involved. There is no dispute as to the insurance policies. The only dispute is as to the rest of the estate of the decedent.

The appellant attempted to probate a nuncupative will of the decedent, the proof of which was in the form of a letter written from camp to the stster, and the testimony of two men who talked with the deceased while he was in camp. The Surrogate (1) admitted to probate the letter written by the deceased; (2) revoked letters of administration and granted letters testamentary; (3) directed payment of $500 to a special guardian; (4) directed payment of stenographer's fees. The Appellate Division denied probate of the letter as the will of the deceased, as a matter of law, and refused to allow the probate of the nuncupative will testified to by the two witnesses on the ground that there was no evidence as a matter of law to support a finding that there had been an oral will legally made. The provisions for the payment of fees to the special guardian and the stenographers were affirmed.

The letter allowed probate by the Surrogate follows:

‘With the Colors

‘September 20, 1917.

‘Dear Sister:

‘I inform you that I am still where I have been, that I am in good health and am wishing that the Almighty God keep you the same.

‘I want to know whether brother Hipolita has already left for the Camp, let me know about it if he has not left as yet.

‘Now, loving sister, I want you to know that I had myself insured today for $5,000 (five thousand dollars) and it was drawn in your name and in the name of Brother Hipolita, but you are first and the brother is second. I know when I am not alive, you will get the money, but do no injustice to the brother, you would have to pay to brother Hipolita, thousand dollars, if he is alive, and if he is not alive, then everything is yours.

‘This is my Will in which I bequeath to you all.

‘Your ever well-wishing brother,

‘Wladyslaw Zaiac.’

There are three questions involved: (1) May an unattested writing (a letter) of a soldier in active service be probated as a nuncupative will? (2) If not, is there any evidence to sustain the findings of the Surrogate that a nuncupative will was legally made? (3) If there is, may the Court of Appeals direct the probate of that will in the circumstances here presented?

The learned Surrogate is persuasive in his reasoning that a letter should be admitted as a nuncupative will. Certainly the written word of the deceased is as good evidence of the will of the deceased as is the recollection of two witnesses, after twenty years, of what the deceased said. But the law appears to bar the probate of such a letter as a will. Section 141 of the Surrogate's Court Act provides: ‘Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. * * * Before a nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. The proofs must be reduced to writing.’ Section 21 of the Decedent Estate Law (Consol. Laws, ch. 13) provides for the manner of the execution of written wills, and section 16 of the Decedent Estate Law reads: ‘ Unwritten wills of personal property, when allowed. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea.’

In the face of these provisions it is difficult to see how an unattested letter can be probated as a will even when written by a soldier. The law seems to be that if the will of a soldier is written it must be subscribed by two witnesses. Here there was no proof of the execution and the tenor of the letter by two witnesses. The testimony by the two witnesses was of an oral will. Such being the case, the law has not been complied with when an unattested letter is the only evidence of the will. Matter of Stein's Will, 119 Misc. 9, 194 N.Y.S. 909 and Matter of Miller's Will, 134 Misc. 671, 236 N.Y.S. 529 so held. The Surrogate so decided in Matter of Mallery's Will, 127 Misc. 784, 217 N.Y.S. 489, and that case was affirmed by the Appellate pellate Division, 220 App.Div. 794, 221 N.Y.S. 859, and the Court of Appeals, 247 N.Y. 580, 161 N.E. 190. The Surrogate there wrote an opinion and specifically stated that the letters were not executed in the manner prescribed for a written will and could not be probated. The first point argued on appeal to the Court of Appeals was that the Surrogate erred in not...