
    In the Matter of the Probate of the Last Will and Testament of Barton W. S. Martindale, Deceased.
    
      (Surrogate’s Court, Kings Cotmty,
    
    
      November, 1910.)
    Mandamus—Procedure and Relief (Code Civ. Pro., §§ 2067-2085)--Peremptory Writ—Against Whom Issued.
    Wills—The Testamentary Instrument or Act—Requisites, Form and Validity—Instruments Referred to.
    Where testator gave and devised his entire estate to his wife and directed that certain corporate stock mentioned in a certain agreement should pass under his will, the agreement referred to is no part of the will and should not be included in the probate and record.
    Proceedings upon the probate of a will.
    Dykman, Oeland & Kuhn (John J. Kuhn and William W. Taylor, of counsel), for proponent.
    Foley & Powell (Henry A. Powell, of counsel), for respondent.
   Ketcham, S.

The will propounded contains a gift and devise of the entire estate to the testator’s wife. It then proceeds as follows:

Third. It is my will and I hereby direct that the capital stock of the Martindale Agency, mentioned in a certain agreement entered into between George B. Martindale and myself and bearing date the 7th day of January, 1909, of which I may die possessed, shall pass under this will subject to all the terms and provisions of the said agreement.”

The question is presented by proper answer whether or not, in the probate and record of the will, shall be included, as a part thereof, the entire agreement referred to in the third paragraph of the will.

It is “ unquestionably the law of this state that an unattested paper which is of a testamentary character cannot be taken as a part of the will, even if referréd to by that instrument.” Booth v. Baptist Church, 126 N. Y. 215, 224.

Whether or not an instrument purely contractual can ever be made a part of a will by reference, there is no intention revealed in this will that the instrument therein mentioned shall be a part thereof.

Even when a testator’s meaning is in balance, it is the duty to ascribe normal rather than eccentric, purposes. In this case the incorporation of the extrinsic paper would be useless, for it would change nothing. There is no indication that the testator intended to load his will with a mass of words which, if introduced, would not affect the disposition of his estate.

Hence, in the absence of any evidence to the contrary, it must be found that he did not harbor an idle and fantastic purpose and that it did not occur to him that a part of his will was the contract in question.

The will should be admitted according to its face.

Decreed accordingly.  