
    COLLYER v. COLLYER.
    
      Westchester Surrogate’s Court;
    
    
      January, 1886.
    Wills ; Probate of lost or destroyed will ; production of SUBSCRIBING WITNESSES; PRESUMPTION OF REVOCATION ; DECLARATION OF TESTATOR ; PROOF OF CONTENTS; COSTS AGAINST PROPONENT PERSONALLY TO EACH CONTESTANT.
    To prove a lost or destroyed will in the surrogate’s court, it is equally necessary, as in the case of a will actually presented, that two at . least of the subscribing witnesses be produced, or the non-production of them, or either of them satisfactorily accounted for, and then the handwriting or the fact of their having signed the will as witnesses, must be duly proven by competent testimony.
    The requirement that to prove a lost or destroyed will, the proponent must give evidence that it was in existence at the testator’s dehth, or was fraudulently destroyed in his life-time, is not satisfied by pro,of of a declaration of the testator seven months before death, that he had made such a will; for this does not suffice to rebut the presumption of destruction with intent to revoke, which arises from the fact that no will could be found after diligent search made soon after the death.
    Nor is such presumption rebutted by the fact that opportunity existed for fraudulent destruction by those to whose interests the will was inimical.
    The provisions of the statute (Code Civ. Pro. § 1865, formerly 2 R. S. 68 [3 Id. 6 ed.] 70, § 67),—requiring the provisions of a lost or destroyed will, to be clearly and distinctly proven by at least two credible witnesses, a correct copy or draft being deemed equivalent to one,—cannot be satisfied by the testimony of one witness to the provisions of the will, and a copy or draft, proven to be correct by the testimony of the same witness only.
    Declarations of the decedent as to the contents of the will are not available for this purpose.
    
      It seems, that declarations of decedent as to the existence of the will . are admissible, but not his declarations of its destruction.
    The proponent of a will is not entitled to costs as matter of right, if he fail to establish it, save only in the case provided for by Code Civ. Pro. § 2558, subd. 3, where he as executor propounds it in good faith as the means of contesting a conflicting will first propounded by another person.
    The surrogate has power to allow costs of a successful contest of probate, to each of several contestants appearing and contesting by separate attorneys, even though they filed no written objections; and may charge the costs on the proponent personally; and he should do so where the proponent proceeded without any evidence fo sustain his venture, trusting to chance for its development.
    Petition for probate of the last will and testament of Elizabeth Collyer, deceased, as a lost or destroyed will.
    Elizabeth Collyer died in March, 1883, leaving, as alleged, about $70,000 of personal estate. After a fruitless search for a will of the deceased, and on April 13 of the same year, letters of administration on her-estate were duly granted to her brother Charles S. Collyer. On August 10, 1885, the latter filed a petition for a final judicial settlement of his accounts, to which, among other objections, George B. Collyer alleged as an objection, that the deceased left a last will and testament, and subsequently filed a petition praying leave to prove the, same as a lost or destroyed will. Thereupon, the proceedings on the accounting were suspended until the result of such application should be determined.
    The evidence disclosed the facts that the decedent, in 1863, executed a will, which was prepared by John E. Parsons, Esq., a counselor at law, in the city of New York, the draft of which he produced and verified ; that the engrossed copy, after execution, remained in his custody for several years, and was delivered to the deceased about the year 1877, in which year, a folded paper was seen in her possession which she said was her, will; that thereafter it was-never seen by any one. By the draft which was produced, "it appeared that she intended to give all her property, real- and personal, to her brother George B. Collyer, with whom, she had lived for many years. There were declarations of the deceased proven, subject to objection, to the effect that she had made such-a will and also decíaratións, subject to objections, that she had destroyed the same.
    She was a maiden lady and left surviving several brothers and sisters beside said George B. Collyer, and others, who were the next of kin. Only one witness to the execution of the will was examined, and if there were any other subscribing witnesses, their names are not given nor were they produced nor their absence accounted for.
    D. McMahon & F. Larkin, for proponent.
    
      Seaman Miller, for administrator.
    
      Abram B. Havens, Edward Wells & Henry M. Collyer, for various next of kin.
   Coffin, Surr.

—This proceeding was instituted with a view to proving the last will-and testament of Elizabeth Collyer, deceased, as a lost or destroyed will;..

The power to take such proof relating to a will of real estate, formerly resided solely with the court of chancery (Idley v. Bowen, 11 Wend. 227; aff’g 1 Edw, 148 ; Bowen v. Idley, 6 Paige, 46). The proceeding was based upon the fact that jurisdiction was lacking in the proper ecclesiastical courts and courts of law (1 Story's Eq. J. §§ 421, 440). In such a case, the court usually awarded an issue of demsavit tel non (Idley v. Bowen, supra), and required that, on the trial of such issue, all of the witnesses to the will should be examined, if practicable, unless the heir should waive the proof (2 Story's Eg. J. § 1447, and cases cited). So, "under a bill to perpetuate testimony, the will could be proved in the court of chancery, by the examination of the witnesses, without proceeding to a decree {Id. § 1506).

In no case did equity interfere to mitigate the severity, when any existed, of the rules of positive law (3 Bl. Comm. 55). But, by section 63, 2 R. S. 67, the court of chancery of this State was clothed with power to take proof of the execution of any will of real or personal estate, which was lost or destroyed, and to establish the same, as in case of lost deeds. By the next section, the decree establishing the will was directed to be recorded by the surrogate, and the proper letters to be issued by him, as if the will had been proved before him. By section 67, no will could be allowed to be proved as a lost or destroyed will, unless proved to have been in existence at the time of the death of the testator; or shown to have been fraudulently destroyed in his life-time ; nor unless its provisions should be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.

The Revised Statutes (sec. 40) required that at least two witnesses should subscribe a will of real or personal estate, or both, at the request of the testator ; but while section 12 required all the witnesses to a will of real estate, living in the State and of sound mind, to be examined, yet by section 26, a will of personal estate could be proven by one or more of such witnesses.

These provisions are all contained in the same title of the Revised Statutes which conferred the power upon the court of chancery to take the proof of such wills lost or destroyed. These being positive rules of law regulating the mode and sufficiency of the proof of wills in surrogates’ courts, and none other being prescribed for the court of chancery, the latter was bound by them, as far as practicable, in the cases where jurisdiction was thus conferred upon it. By the act of 1837 (c. 460, § 10), two at least of the witnesses to a will of real or personal estate, if so many were living in the State and of sound mind, were required 'to be produced and examined ; and the death, absence, or insanity of any of them was required to be satisfactorily shown. By a subsequent provision, if all the witnesses were dead, out of the State, &c.," proof might be taken of their handwriting and of that of the testator. Now, by section 2618 of the Code, at least two of the witnesses, in all cases, must be produced and examined before the surrogate, if so many"‘are within the State and competent and able to testify ; by the next section, the absence, death, &c., must be shown by competent proof before dispensing with’ his or their testimony ; and, by section 2620, provision- is made for the proving of the handwriting of any or' all who may be dead, absent from the State, &c.

The jurisdiction conferred by the Revised Statutes upon the court of chancery to prove a lost or destroyed will was, when that court was abolished, devolved upon the supreme court, whose powers on the "subject have been somewhat modified by sections 1861, 1862, and 1863 of the Code. Section 2621 confers upon s.urrogate’s courts concurrent power in regard to admitting such wills to probate. It will be seen, by reference to section 1863, when the action is brought in the supreme court, that 66 where the parties to the action, who have appeared or have been duly summoned, include all the persons who would be necessary, parties to a special proceeding in a surrogate’s court, for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been pro vedina surrogate’ s court’ the final judgment must direct, &c.

This precise question as to proving a will by one witness when the other is not accounted for, it. would seem, has never before arisen in this State, and the object of the examination of the history of this power, so conferred upon the supreme court, is to show that the factum of a lost or destroyed will must be established in the same manner as if the will itself were produced in court for probate ; that is to say, two, at least, of the subscribing witnesses must be produced, or the non-production of them or of either of them must be satisfactorily accounted for, and then the handwriting, or the fact of their having signed the will as witnesses, must be duly proven by competent testimony. The correctness of this position is sufficiently shown by the following cases. Grant v. Grant, 1 Sandf. Ch. 235; Stevens v. Brooks, Clarke, 131; Everitt v. Everitt, 41 Barb. 385 ; Voorhees v. Voorhees, 39 N. Y. 463 ; see also Foster’s Appeal, 87 Penn. 67; S. C., 1 Amer. Pro. R. 435, and notes.

In the course of the researches made on the subject, no case has been found, where, in a proceeding to prove a lost or destroyed will, it was held that any proof which fell short of that required by the statute for the proving of a will before the surrogate, would be sufficient to establish it. At least two of the subscribing witnesses must be examined if living and in the State and capable of testifying; and in case of death, absence, or insanity, the fact must be established by proper evidence, and then the fact of their having so subscribed may. be proven. If only one witness be examined, and the handwriting of the other be not shown, then, as the surrogate has now power to take the proof of a lost or- destroyed will, it leads to the absurd conclusion that he might, if the proponent’s position be correct, admit it to probate on the testimony of a single witness and without calling the other, or accounting for his absence and proving that he signed as a witness, in defiance of the. statutory-regulations for proving one which is present.

The case of Colligan v. McKernan, 2 Dem. 421, cited by proponent’s counsel as an authority to show that a will may be proved by one witness, &e., is not in point. There the object of the proof was to defeat a will presented for probate by showing that it had been revoked by a subsequent will which was lost. The proceeding was not instituted to prove the lost will.under the statute, and the learned surrogate properly held that one witness, at common law, was sufficient to sustain the objection to the will propounded.

The assistant vice-chancellor in . Grant v. Grant, (supra), says: “ The will is said to ;be lost. But that does 'not affect the requisites to its due execution. Those must be proved as if it Avere present.” So Justice Biiowsr, in the case of Everitt v. Everitt (supra), says:. “If there are witnesses to the execution of the instrument who have subscribed their names as such ■(¿nd without subscribing witnesses, selected by the testator himself, a will has no • force), they must .be produced and examined, if living and within the power of the court. If they be dead or beyond the jurisdiction of the court, secondary evidencé may be resorted to in this contingency, and proof taken of their handwriting.”- ..:

I am thus led to the conclusion that the will in question has not been proven. John E. Parsons, Esq., was the only witness examined as to the factum of the alleged will, which was drawn by him, the draft produced containing neither the name of the decedent or those of the witnesses. While he cannot positively testify that he was a subscribing witness thereto, but thinks he was, yet, assuming that Ms impression is correct, he is unable to state who the other witness or witnesses were, and, consequently, it was impossible to call them or to show their absence or inability to testify, and thus lay a foundation for establishing the fact of their signatures by other proof. On this ground alone, probate should be refused.

But the proponent has wholly failed in his proof in other respects. He has not shown the will to have been in existence at the time of the death of the testatrix ; nor that it was fraudulently destroyed in her life-time. It is true, he has offered much evidence with a view to establishing one or the other of those facts, but it falls far short of that conclusive character essential to either of those purposes. The declaration of the testatrix to the effect that she had made a will of a certain character, uttered seven months before her decease, does not rebut the presumption of its destruction by her, animo revocandi, arising from the fact that none could be found, after diligent search made soon after her death. Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276 ; Schultz v. Schultz, 35 Id. 653; Eighmy v. People, 79 Id. 546. Nor does the fact that an opportunity existed for the fraudulent destruction of the will, by those to whose interests it was inimical, overcome the presumption of such destruction by the deceased. There must be evidence furnished, strong enough in its character to warrant the finding of the commission of such fraud by some one. Here none is found to justify such a conclusion. The contents of the will, after its execution in the manner shown, seem never to have been seen by any one, and the document was traced into the possession of the deceased in 1877, which was the last time, so, far as appears, that the paper was ever seen.

In-my view of the case, the declarations of the deceased as to the existence of the will, or of its destruction by her, and which were respectively objected to, are.of little consequence, and no careful examination of the authorities cited has been made ; although the better opinion would seem to be that the former are, in this case, admissible, while the latter are not, and the objections thereto are disposed of accordingly. The matter turns upon considerations other than these.

There seems to be still another difficulty in the way of the establishing of this as a lost or destroyed will. Section 1865 («Code Civ. Pro.) requires that the provisions of the will shall be clearly and distinctly proven by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness. This is the same as section 67 of the Revised Statutes (2 R. S. 68 [3 Id. 6 ed.] 70, § 67), above quoted, and is made specially applicable to a proceeding of this character, in a surrogate’s court, by the same section which confers jurisdiction on it to prove such will. In this case, Mr. Parsons produced the draft of the will made by him, which, he substantially testifies, was correctly engrossed by his clerk, and, that, so engrossed, was executed by the decedent. Hence that draft may be treated as a substitute for one of the two witnesses required by the statute. In no other way does he prove the provisions of the will. It is true, they were simple, devising.and bequeathing all her estate, real and personal, to her brother George B. Collyer, the proponent, but that will not warrant the dispensing^ with the one witness which the statute requires beside* the draft. If it did, then it would seem that, in all cases, the person verifying the draft or copy (and it would not be evidence without such verification), by the very act of testifying to its correctness, would thereby become the needed witness. Such cannot fairly be considered the design of the provision. Another witness was required to render the proof complete on this subject. Declarations of the decedent as to the contents and substance of the will, are not available for such a purpose. The evidence must come from some person who has read, or heard read, the document. None was produced, and the proof, therefore, falls short of what the statute requires.

Probate of the alleged will is accordingly refused, with costs to the contestants against the proponent.

Settlement of decree refusing probate.

Coffin, Surr.

—On the settlement of the decree in

this matter, counsel for proponent claimed, first, that the proponent was entitled to costs, as matter of right, under subdivision 3 of section 2558 of the Code, and that the court had no discretion on the subject; and second, that only one bill of costs could be allowed to all of the contestants, although they appeared separately and by different attorneys.

As to the first point, I think he is clearly in error. That subdivision applies only to a contestant of a will propounded for probate, and not to a proponent. If a will be offered for probate, and a person, who is named as executor in a prior or subsequent one, contest the one so offered, and seek to have it established, and thus defeat that which he contests, if he fail, acting in good faith, he shall be entitled to costs. That is by no means this case. Here, George B. Collyer is the proponent, and not the contestant of any will. The object of this subdivision is stated in the Commission - ers’ note to be “ to check the vastly increasing number of cases, wherein wills are contested upon slight grounds, the contestants relying, if the estate is large, upon procuring an, allowance for costs which will indemnify them against the expense of the litigation.” The case of Whelpley v. Loder, 1 Dem. 368, furnishes an instance of the applicability of the subdivision to such a.state of facts as is above supposed. Therefore, the proponent is not entitled to costs as a matter of right.

In reference to the second point, it cannot be doubted that the different contestants had a perfect right to employ separate counsel to protect their several interests ; and although they filed no written objections, yet the respective attorneys contested the matter throughput, and with much earnestness and zeal. The proponent commenced the proceeding, solely in his own interest, possessed of no knowledge or evidence of facts to sustain it, trusting, apparently, to chance for their development, in which he failed. He cannot escape the consequences of such risk, by leaving the contestants to pay their own expenses in resisting his.reckless attack upon their rights. The power of granting to, or withholding costs from, several defendants is, as is shown by the authorities cited by proponent’s counsel, discretionary with the court (Hauselt v. Vilmar, 76 N. Y. 630).

This seems to be a case where it is eminently proper to charge the costs of each contestant, upon the proponent personally, and it is so ordered.  