
    Matter of the Probate of the Last Will and Testament of Emma Kivlin, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      February, 1902.)
    Will — Complete Failtjbe of Execution — Public Policy.
    Where there has been a complete failure to comply with the statutory provisions relative to the execution of wills, a will must be denied probate from reason of public policy.
    PROCEEDINGS upon the probate of a will.
    Edward D. Childs-, for proponent.
    James B. Moore, for contestant.
    E. L. Corrao, special guardian.
   Church, S.

— This case is another illustration of the folly of persons endeavoring to attend to their-own legal matters, particularly when it comes to the execution of a will.

It appears here that the deceased had in her possession for a long period of time a will to which there is a signature appended which is- probably her own.

' _ At one time -she spoke to the two persons who have been presented here as- witnesses to the will, and stated that she wanted them to witness her will, which was all made out and ready for them to sign. Subsequently she stated to Mrs. Von Bargen, one of the witnesses, that she wished her to sign the ■will as a witness. Mrs. VonBargen took the paper away and subsequently, in the absence of the deceased, Mrs. VonBargen requested her son to sign as a witness with her to the will. Both Mrs. VonBargen and her son then signed this paper and brought it back and gave it to the deceased.

The deceased did not specifically acknowledge that it ivas her signature to Mrs. VonBargen or the young man, nor did she at any time directly acknowledge this paper to be her will, or the subscription to be hers, or request the young man to sign as a witness. These facts show the failure to comply with the provisions' of the statute.

There is no doubt but what the deceased intended this paper to be her will, but the courts have held that the intent of the deceased cannot be paramount to the intent of the Legislature (Matter of Andrews, 162 N. Y. 1), and that where there has been a complete failure to comply with the .statutory provisions that probate must be denied from reasons of public policy, and the courts have gone so far in this matter to even refuse probate to holographic wills where there could be no possible doubt as to the intent of the deceased.. Mitchell v. Mitchell, 16 Hun. 97; affd., 77 N. Y. 596; Matter of Mackay, 110 id. 611.

It is fortunate in this case, for the beneficiary named in the will, that the rejection of this will will make no difference in the rights to which he was entitled in the estate.

The party who has assumed to contest this will, however, has apparently made this contest for mere purposes of mischief. As she is a sister of the deceased, and as the deceased died leaving no children, and a husband, the contestant would not be entitled to any portion of the esate, unless the deceased died owning real estate.

It has appeared on the contest before me that there is no such real estate, this fact being practically conceded by contestant’s counsel.

It is, therefore, apparent that the objections which were filed by the contestant were not filed to protect any interest of the contestant, but merely in the nature of causing annoyance, if possible, to the proponent here, and if there had been no contest probate would have been refused on the facts disclosed.

Therefore, in refusing probate herein, I will award no costs to the contestant.

Probate denied, no costs to contestant.  