
    MATTER OF T- B.-
    
      Kings County Surrogate's Court;
    
    
      January, 1892.
    
      Wills; refusal of probate as to libelous matter.] A will being an instrument which disposes of one’s property to take effect after death, should not be permitted to be made a vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.
    
    Matter of the probate of the will of T- B-, deceased. -
    The facts are fully stated in the opinion.
    
      
       See note at the end of this case.
    
   Abbott, S.

The special guardian for the infant in this proceeding filed objections to the probate of the last clause of this will, on the ground that such clause was superfluous and libelous, and should be refused probate and record.

It reads substantially as follows: “ Item—And whereas one of my sons .... is deceased and there is á child in existence, which is claimed to be his and which is named .... now it is my will that no portion of my estate, real or personal, shall go to or belong to him, his heirs or representatives.”

The son mentioned in the “ Item ” aforesaid had not lived happily with his wife and they had separated after a son had been bom to them, whose custody was awarded to the mother, and who is designated as “ the child in existence ” in said “ Item ; ” but upon the hearing in this matter the proper and ceremonial marriage of this son and the legitimacy of his child were admitted in the broadest and fullest manner by the proponents herein, who are also sons of the testator.

The testator disposes of his entire estate, both real and personal, by the clauses of his will which precede this “ Item,” consequently said “ Item ” affects a disposition of no part of his estate.

A will is an instrument which disposes of one’s property to take effect after death and should not be permitted to be made a vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.

The same reasoning would apply to the opprobrious designation of a beneficiary in a will. A beneficiary ought not to be compelled to take a legacy cum onere. The opprobrious designation should not be probated or recorded, the dispositive words only should be admitted.

I have been unable to find any case in this State in which this point has been passed upon, but there have been cases elsewhere which establish that probate of part of a properly attested will may be decreed while the rest is rejected, and it would appear that something superfluous may be expunged from a properly executed will though the right to insert words or reform a sentence is denied (Schouler on Wills, § 219 ; Rhodes v. Rhodes, 7 App. Cases 192; Allen v. Macpherson, 1 H. L. C. 208; Fawcett v. Jones, 3 Phillim, 455 ; Morris, v. Stokes, 21 Ga. 552).

After referring to the English practice of excluding portions of a will from probate under certain conditions, Redfield on Wills, vol. 11 p. 43 (ed. 1866), says: “ And we see no reason why the same course should not be pursued here. But it has been held that the court cannot, even with the consent of all parties interested, expunge from the probate any parts of the will which constitute operative portions of the instrument. But offensive passages have sometimes been allowed to be omitted from the probate, when the omission does not change the legal effect” (In re Wartnaby, 1 Robertson's Eccles. Rep. [Eng.] 423; see also 1 Williams on Executors, 6th Amer. ed. p. 443, and cases cited).

Following the doctrine of these authorities it seems manifest to me that as this “ Item ” contains no testimentary disposition and is not a necessary or operative part of the will, but simply casts an unwarranted slur upon an innocent child, it should be refused probate and record.

Let decree be presented accordingly.

Notes of Cases.

Curtis v. Curtis, 3 Addams, R. (Eng.) 33 (1825). The will offered for probate was as follows: “ I leave all my property of every kind to my sister Mary in consequence of the cruel and murderous conduct of my wife in this illness, as well as in past instances.” The wife offered not to oppose the probate if the extraneous part of the will which was injurious to character would be struck out by the court. “The court said, not having authority to strike out or expunge any part of a will written by a testator propria manu upon a mere verbal application, it was compelled unwillingly to withhold its assent to the proposition. It remembered that a similar application on the part of a nobleman whose wife had made serious reflections upon him in her will had been rejected by its predecessor, Sir William Wynne, on similar grounds, although in that as in the present case all parties were consenting.”

[The application in this case appears to have been to strike out the obnoxious matter from the original will and not from the probate copy. Compare In re Wartnaby, next case.]

In re Wartnaby, 1 Robertson Ecclesiastical Rep. (Eng.) 423 (1846). Libelous passages unconnected with the testamentary dispositions in a will on a stranger allowed to be omitted in the probate copy, but allowing them to remain in the original will.

Ogden v. Greenleaf; 143 Mass. 349. Where fraud or undue influence was exercised by one of the legatees named in the will to procure the legacy to himself, probate will only be'denied as to the legacy to such legatee.

The court say: “ That under certain circumstances there may be a partial probate of a will as where certain property of which it disposes is properly subject to it, while property of which it assumes to dispose is not, cannot be controverted (Citing Deane v. Littlefield, 1 Pick. 239; Holman v. Perry, 4 Met. 492 ; 1 Redf. on Wills [4th ed.] 519).

Morris v. Stokes, 21 Ga. 552. Where the probate of a will was contested on the ground that one of the principal legatees had procured the gift to himself by undue influence, Held, such legatee, was by reason of interest incompetent to testify in support of the probate only or so far as his <;wn interest was affected since his legacy might be struck out and the balance of the will established.

Fawcett v. Jones, 3 Phillim. 434. Revocation of probate refused when applied for on the ground that the residuary clause contained in the will was not co-extensive with testator’s directions.

[See p. 455 cases cited in argument of counsel as to when upon probate provisions introduced into a will by mistake or fraud may be struck out.]

Allen v. McPherson, 1 H.of L. case 208. After the admission of a will and codicils to probate in the ecclesiastical court, a legatee sought relief in the court chancery against a final codicil revoking a large bequest in a former codicil, alleging that the testator had executed the last codicil under undue influence of the residuary legatee and that the claimant was confined in the ecclesiastical court to objections which affected the entire codicil, and was not permitted to go into a case relating to the parts of the codicil which only affected him. Held, the ecclesiastical court might admit a part of an instrument to probate and refuse it as to the rest; and that it had jurisdiction over the case.

Rhodes v. Rhodes, L.R. 7 App. Cases 192. Amendment of probate so as to omit certain words in the will, on the ground that the draughtsman introduced them without reason or special direction, and that their effect had not been appreciated by testator—refused.

It seems, however, where a portion of a will has been introduced through fraud or perhaps inadvertence it may be rejected and probate granted as to the remainder if the two are severable. But where the action alters the sense of the remainder, quiere.  