
    Cattaraugus County.
    Hon. ALFRED SPRING, Surrogate.
    July, 1888.
    Stevens v. Stevens. In the matter of the probate of the will of Sarah A. Stevens, deceased.
    
    After her will had been duly and completely executed and published, testatrix informed the draftsman that she wished to bequeath to one J. her household furniture, and other articles then and there specified, and a bureau to S. The draftsman wrote these directions on a slip of paper, stating that he would paste the latter in the will, on reaching home. When produced for probate, the will presented a cross-section into which the post-testamentary slip had been inserted by the draftsman,—there having been no re-execution or republication.—
    
      Held, that the instrument should be admitted, as executed, excluding the interpolated clause.
    Sisters of Charity v. Kelly, 67 N. Y., 415; Matter of O’Neil, 91 N. Y., 516—distinguished.
    Application for probate of decedent’s will, made by Russell Stevens, executor therein named; opposed by William Stevens and another, next of kin.
    
      J. G. Johnson, for proponents.
    
    T. H. Dowd, for contestant.
    
   The Surrogate.

The testatrix in this case was of sufficient mental capacity at the time of the execution of the will propounded; she was under no restraint, and the statutory formalities were well complied with in the execution of the will. The point of the controversy is this: After the testatrix had signed the will, fully understanding all of its contents and expressing her assent thereto, in fact after the will had been fully made and executed, the testatrix stated to the scrivener that her household furniture, clothing and bedding, she wished to bequeath to Jane Myers, except a bureau which she was to give to Edward Stevens. The draftsman accordingly wrote these directions on a separate piece of paper, read what he had written to testatrix, and stated to her he would paste that in the will when he reached home. It was produced upon the trial with this interpolated clause pasted upon the paper propounded—the instrument having been cut into, so as to permit that clause to be inserted in the proper place as the seventh subdivision of the will. There was no re-publication of the will after that clause had been written; it was not in any way attached to the will at the time of the execution, nor in the presence of testatrix or the witnesses, nor was any force given to it as a testamentary provision by what there occurred.

The proponent offers the will for probate exclusive of this interjected portion.

This controversy is another illustration of the folly of those unfamiliar with the indispensable formalities of the statute as to the execution of wills attempting to supervise their attestation. However, notwithstanding this blundering by the draftsman, I do not think the will was vitiated. It was fully and formally executed prior to the conversation in reference to the disposition of the property contained in this inserted clause. The provisions of the will had been dictated to the draftsman by the testatrix, had been written as she requested, and had been carefully read to her and approved of by her. It was a completed thing when signed by the attesting witnesses. The jugglery by which the will was sought to be changed was like an unsuccessful attempt to make a codicil to a will. The original will is not rendered invalid by a failure to have the codicil properly executed. If this transaction had occurred on the day succeeding the execution of the will it would not be claimed that it could have a retroactive effect by nullifying the will.

The same is true in any case, however brief the time may be, intervening the completion of the will and the attempted alteration. The pivotal point in such cases must be to ascertain whether or not there was an actual complete execution of the will. If so, any subsequent conversation or conduct by the testatrix cannot vitiate it unless it is tantamount to a revocation, codicil, or destruction of the will. See Brady v. McCrosson (5 Redf., 431).

The cases of Sisters of Charity v. Kelly (67 N. Y., 415), and in re O’Neil (91 N. Y., 516) are not applicable to the case under consideration. In each of those cases, the testator failed to sign the will at the end as required by the statute. Mrs. Stevens signed the will, as a finished, completed instrument, at the end thereof.

Nor is there anything in the point that one of the subscribing witnesses wrote the name of the testatrix. She wrote it at the request of testatrix, and a request which was accompanied with a mention of her name in full. That is a sufficient subscription (Robins v. Coryell, 27 Barb., 556; Redf. Surr. Prac. [3d ed.], 163, 164; 44 Barb., 494).

A decree will be entered admitting said will to probate, exclusive of the inserted clause.  