
    Matter of the Contested Probate of the Last Will and Testament of William Henry Griffiths, Deceased.
    (Surrogate’s Court, New York County,
    December, 1914.)
    Wills — when properly executed — execution by layman — appointment of executors — subscribing witnesses — codicil.
    Testator, a layman, after filling with testamentary provisions the space in an ordinary will blank down to the printed clause for the appointment of executors continued on to the third page leaving the second page blank. A sentence begun on the first page was completed on the third page and the word “ over ” was written on both pages to show the connection. The printed form on the first page for the appointment of executors was filled in and the testator and subscribing witnesses signed their names in the appropriate spaces on the first page. The writing continued connectedly down the third page to about the middle where the signature of the testator only and the date “ Feby. 25, 1911 ” appeared and then followed a direction, signed by the testator only, that no bonds should be required of the executors named. At the bottom of the third page there was the following: “ Feby. 27th, 1911. Codicil No. 1. I bequeath to my first born son Henry Wilson Griffiths the sum of Fifty dollars $50.00 in cash.” Directly below this and at the actual end of the writing were the signatures of testator and subscribing witnesses. It appeared by the uncontradicted testimony that the date at the bottom of the third page was the date of the execution of the paper and that all the signatures were affixed at one sitting. It also clearly appeared that testator did not use the word “ codicil ” in its legal sense but referred to it as the “ end of the will,” meaning that the so-called codicil was part of the entire transaction in making the will. Held, that the signatures of testator and subscribing witnesses at the bottom of the third page were at the natural end of the will and that the entire writing was properly executed as a will and was entitled to be admitted to probate.
    Proceeding upon the probate of a will.
    Béla Darwin Eisler, for proponents Walter Wurzburger and John H. Pratt, executors.
    
      Robert M. Boyd, Jr., for contestant, Henry Wilson Griffiths.
    Warren 0. Fielding, special guardian.
   Cohalan, S.

The will was drafted by the testator on an ordinary will blank. The space in the blank on the first page was inadequate for the testamentary provisions that the testator desired to make and, after filling that space down to the printed clause for the appointment of- the executors, the testator continued on to the third page, leaving the second page blank. A sentence is begun on the first page and completed on the third page and the word over ” is written on both pages-to show the connection between the provisions begun on the first page and completed on the third. The printed form on the first page for the appointment of the executors is filled in and the testator and the witnesses signed their names in the spaces for that purpose on the first page.

The writing continues connectedly down the third page to about the middle thereof, where there appears the signature of the testator only, and the date, ‘ ‘ Feb. 25/1911.” Then there follows a paragraph on the third page, directing that no bond shall be required of the executors named on the first page. This paragraph is signed by the testator, but, like the paragraph immediately above, is not subscribed by the two witnesses.

At the bottom of the third page is a clause which appears on the paper as follows:

“ Feby. 27th, 1911.
" Codicil #1. I bequeath to my first born son Henry Wilson Griffiths the sum of Fifty dollars $50.00 in cash. ’ ’

Directly below this are the signatures of the testator and the two attesting witnesses. These subscriptions are at the actual end of the writing on the paper propounded for probate.

From the testimony it appears without contradiction that although two different dates appear on the paper the date at the bottom of the third page, February 27, 1911, is the actual date of execution, and that all the signatures were affixed at one sitting.”

The testator had invited the two witnesses to his home for dinner. After dinner he asked them to witness his will. The testator read what he had written and one of the witnesses suggested that he should make some provision for his eldest son. The testator then wrote the clause which he called Codicil #1,” in which his eldest son is bequeathed the sum of fifty dollars. In the presence of the two witnesses the testator then signed his name at the places where his signature appears on the .paper. The witnesses then signed the paper twice on the first page and at the end of the writing on the third page, opposite the signature of the testator. The testator indicated the place at the bottom of the third page where the two subscribing witnesses were to sign, saying: “ This is the finish of it,” or This is the end of the will,” or words to that effect.

The questions involved are whether the first page is a valid will, whether the last clause on the third page is a codicil, whether the whole paper is a single will, and, if so, whether it was properly executed at the end thereof by the testator and the two subscribing witnesses.

Because of the fact that material parts of the will on the third page are connected with the writing on the first page, it is well settled that the testamentary provisions above the signatures on the first page do not constitute a valid will.

The intrinsic evidence of the paper itself shows that the “ end ” of the paper propounded is on the third page. If the “end” is just above the paragraph which the testator called “ Codicil #1,” where only .the testator signed, the will is invalid because it was not signed at the end by the two witnesses. In that case there could be no codicil in the legal meaning' of the term, because a codicil is an addition to a completed will. If what is termed a “codicil” is an addition to an incomplete will, and the whole instrument, including the so:called “ codicil,” is afterwards validly executed as an entire will, the so-called “ codicil ” becomes merely a paragraph or clause or part of a will and is not a “ codicil ” in the legal sense of the term.

That is the situation here. The so-called “ codicil ” was on the paper before the witnesses affixed their signatures- to any part of the paper. The evidence shows clearly that the testator, a layman, did not use the word “ codicil ” in the legal sense, but referred to it as the ‘1 end of the will ’ ’ or the ‘ ‘ finish of it, ’ ’ evidently meaning that the so-called “ codicil ” was part of. the entire transaction of making his will.

As there was no will until the witnesses subscribed their names below the last paragraph on the third page, and as all the other requirements were unquestionably observed, I am of opinion that the signatures of the testator and of the two subscribing witnesses at the bottom of the third page are at the natural end of the will, and that the entire writing was properly executed as a will.

All of the writing on the paper propounded will be admitted to probate as the last will and testament of the testator.

Probate decreed.  