
    In the Matter of the Application for the Probate of the Will of Volkert Hardenburg, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Will—Execution.
    Where a paper, apparently divided into a will and codicil, is really one paper, executed at one time, it will be taken together as one transaction.
    A Same.
    It is not necessary that both of the subscribing witnesses should state all the material facts required by the statute.
    ■S. Same.
    Any act of the testator in the presence of the witnesses, at the time of the execution of the will, that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered.
    
      4. Same—Probate—Power oe supreme court.
    Where, upon an appeal from a decree revoking probate of a will, there is no substantial conflict in the evidence as to the fact of the execution of the will, the general term should direct that the original probate of the will should be confirmed.
    Appeal from a decree revoking probate of the will.
    
      A. B. Ottaway, for app’lt; H. C. Kingsbury, for resp’t.
   Ward, J.

J.— Volkert Hardenburg, of the town of Westfield, in ■Chautauqua county, died on the 15th day of March, 1892, leaving a last will and testament, in which he made various bequests to his wife, three sons, and a daughter, Jane H. Munger, and other relatives. Before executing his will, and on the 22d of January, 1892, in the forenoon, he sent for Ralph A. Hall, a friend of his, and a banker, and stated to him that he desired him to prepare a will, and gave directions as to its contents, of which Mr. Hall made a memorandum. Hall drew the will as he understood the directions, and in the afternoon presented it to the deceased, read it ■over to him, and, when he reached the tenth clause of the will as written, which was as follows : “ All the rest of my estate, both real and personal, I desire to be divided among my children that may be living at the time of my death, share and share alike therein,”—the testator, who perfectly understood the paper, said that he desired to change that clause; that he meant to be understood to mean his living sons, instead of his living children. Hall made the desired change in the presence of the testator, but instead of changing it in the tenth clause, he appended what he called a “ codicil,” so that the paper, when it was ready for signatures, and when it was signed, appeared as follows :

“ In witness whereof, I have signed and sealed, published and declared, this instrument as my will, at Portland, Chautauqua county, N. Y., on this 22d day of January, one thousand eight hundred and ninety-two.
his
“ Volkert X Hardenburg. II. s.l mark
“Ralph A. Hall, Witness to Mark.
“ The said Volkert Hardenburg, at Portland, Chautauqua county, N. Y., on the 22d day of January, 1892, signed and sealed this instrument, and published and declared the same as his last will and testament, and we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses.
“ Ralph A. Hall. Brocton, New York.
“ J. Frank Scott, Portland, New York.
“ Codicil: In the tenth section of this, may last will, I desire it should read : ‘ All of the residue of my estate, both real and personal, I desire to be divided among my living sons at the time of my death, anything in this will to the contrary notwithstanding.”
“ Dated at Portland, N. Y., January 22, 1892.
his
Volkert X Hardenburg. [l. s.J mark
“ Ralph A. Hall, Brocton, N. Y.
“ J. Frank Scott, Portland, N. Y.”

Before any of the signatures were attached, the scrivener asked the deceased whom he wished for the other witnesses to the will, and he said Mr. Frank J. Scott, who lived across the road from the deceased, and was well acquainted with him. Scott immediately came. Hall testified that the codicil was written in the presence of the testator, and, as he thinks, after Scott arrived. Scott testified that he thought Mr. Hall had just finished writing it after he had stepped into the room, but he heard Hall mention the word “ codicil” ; that Hall said he had drawn the will with a typewriter, and the deceased wanted to make a change, so he had added a codicil with a pen. The attesting clause was read over by the scrivener, in the presence of the deceased and Scott. Hall asked the deceased to sign the will, and he said he could not see-very well, end asked Hall to sign it for him, and witness it. Hall asked deceased, in the presence of Scott, if that (referring to the paper) was his last will and testament, and he said it was. He then asked the deceased the same question about the codicil. Hall testified :

“ I asked him (deceased) if the codicil as I read it to him, was as he wanted it; and he said it was. 1 asked him if he declared that to be his last will and testament. He said he did. We (Scott and I) witnessed it. He asked us to witness it for him, both instruments. I asked him in reference to both instruments. We both subscribed our names to both the will and 'the codicil, in his presence and in the presence of each other. At the time of the execution of this will and codicil, 1 considered him of sound mind and memory. He was upward of ninety. He did not appear to be under any restraint.”

The witness again says:

“ I asked him (the deceased) if it was his last will and testament ; also the codicil. I think I might have said: ‘ This instrument is your last will and testament; also the codicil. I signed it as a witness. Mr. Scott signed it as a witness, both in the body of the will and the codicil, at that time. Both instruments were executed in my presence and Mr. Scott’s, and in the presence of Mr. Hardenburg, and signed by both of us at that time. I say distinctly that I called his attention both to the will and codicil at the same time. They were both signed right along in connection.”

The witness Scott says:

“ I went in where deceased and Mr. Hall were. They had this paper there at this time. Mr. Hardenburg signed this paper there at this time, in my presence; that is, he signed the mark—the cross—in my presence, and in the presence of Mr. Hall. He signed the will there. Mr. Hall asked him if this instrument was his last will and testament, and he said it was. He asked me to sign as a witness. He also signed the codicil in my presence, and in the presence of Mr. Hall. Mr. Hall did not say anything about-that. Mr. Hall said he had written it with a typewriter, and he wanted to make a little change, and he added it with a pen, and Mr. Hall wrote his name in both places. Both signatures were made at the same time, if I remember right; and after that he declared it to be his last will and testament. * * * I signed in both places, same as Mr. Hardenburg did. That is my signature in both places. At the time, he appeared to be of sound mind and memory, and under no restraint.”

Ho other witnesses were examined except the subscribing witnesses, Hall and Scott. The three persons were alone in a room. The evidence showed that the testator fully understood, as did the witnesses, the whole transaction. While he was somewhat deaf, and it was difficult for him to see, he was made to understand, and did understand, all that occurred. He knew that the codicil simply carried out his instructions as to the change in the tenth clause,, and that that was the purpose of the codicil was fully understood by the witnesses. The will and codicil was admitted to probate by the surrogate, by the consent of all the parties interested in the will, on- the 11th of April, 1892. In July afterwards, the daughter, who had consented to the probate, filed a petition for the revocation of the probate of the will; and such proceedings were had thereon, that in June, 1893, the surrogate decreed that the probate ■of the codicil should be revoked, and that the probate of the other portion of the will sustained; so that the will, by his decree, is valid, all except the alteration of the codicil. The evidence above referred to was given upon the proceedings to revoke, and the surrogate based his own conclusion upon what he claimed a want of evidence to show a due publication of the codicil. In the findings which he makes, and that appear in the case before us (being numbers 11 to 15, inclusive), he finds that the deceased, in the presence of Hall and Scott, signed the will produced in evidence by making his mark; that in the same presence he signed the ■codicil of the will by making his mark; that -he told Hall that be could not see very well, and asked him to write his (the deceased’s) name; that Hall, in the presence of the deceased and Scott, signed the name of the deceased to the will and codicil, at the places where the deceased had made his mark to the will and codicil; that Hall, in the presence of Scott, asked the deceased if that was his last will and testament, and the deceased said it was ; that Hail wrote the codicil in the presence of the deceased ; that -deceased told Hall that he desired to change the tenth clause so that. it should read “the living sons,” instead of “the living children.” And he also found the facts as to preparing the will .and its being ■read over to the deceased as above stated. The surrogate refused to find that the deceased requested the witnesses to execute the ■codicil as witnesses, or that he declared the codicil to be his last will and testament, and for the want of this proof, as the surrogate claims, he rejected the codicil.

A-careful examination of the evidence taken before the surrogate, together with the findings which he makes, leaves it clearly established that the statutory requirements in the execution of the will were complied with in substance and effect. There was no evidence to show that the testator was under restraint or in any manner influenced in making the will, or but what he had sufficient mind to make a valid will. While the paper is apparently divided into a will and codicil, it was really all one paper, executed at the same time, and to be taken together as one transaction. The purpose of the codicil is undisputed. It was simply to correct the tenth clause of the will. This might have been done by interlining the change of “living sons” for “living children," and, if done before execution, would have been valid. In re Tennelle, 5 N. Y. Leg. Obs. 254. The scrivener, however, thought he must make this change in a separate instrument, which he did, and called it a “codicil.” It referred to the change made in the principal paper, and, but for the requirement of the statute that the testator should sign at the end of the will, would have been a valid portion thereof, same as if written in the tenth clause itself. It was not therefore, in a proper sense, a “codicil,” but the statutory objection was avoided by the testator’s and the witnesses signing at the end of this paper as the other, and the reading of the attestation clause in the presence of the witnesses. And the declaration of the deceased, after he had executed the paper by signing his name twice, that it was his last will and testament, and his request to the witnesses to sign it, was a declaration as to the whole instrument, and also a request as to the same, as it was all one transaction; and therefore it was unnecessary to make a special declaration as to each signature, although the testimony is that that was done. The failure of the witness Scott to remember as fully what was said in regard to the codicil by Hall, who drew the paper, does not disprove the fact testified to by him. Rugg v. Rugg, 83 N. Y. 592. And, while the Code (section 2618) requires that at least two of subscribing witnesses shall be produced and examined, yet it is not necessary that both witnesses should state all the material facts required by the statute. In re Grahams Will, 30 St. Rep. 292, and cases there cited. The fact that testator was fully apprised of the testamentary character of the instrument may be considered in aid of proofs tending to establish the publication. Gilbert v. Knox, 52 N. Y. 125. The testator not only understood this, but the witnesses did, at the time of the publication, and that the object of the codicil was to effect the change desired by the deceased in the instrument.

Any act of the testator in the presence of the witnesses at the time of the execution of the will that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered; and in Re Perego's Will, 24 St. Rep. 496, Judge Dwight says :

“A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing ; and a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent in such manner as is practicable under the condition existing.”

And in Thompson v. Seastedt, 6 Thomp. & C. 80, affirmed in court of appeals (62 N. Y. 634), Judge Daniels says:

“Although she (testatrix) did not, according to the testimony which was given, in words declare the instrument to be her will, it is clear that she treated-it and designed the witnesses to understand it to be such. That was equivalent to such a declaration, and sufficient to satisfy the requirement of the statute upon the subject ; for that does not necessarily contemplate such a declaration in words, in order to render the instrument valid as a will.”

This doctrine is sustained in a long line of cases, under many different circumstances, some of which are as follows: Lane v. Lane, 95 N. Y. 494; Reeve v. Crosby, 3 Redf. Sur. 74; Inre Voorhis' Will, 125 N. Y. 765: Darling v. Arthur, 22 Hun, 84; In re Cottrell, 95 N. Y. 329; Rugg v. Rugg, supra; lnreBernsees Will, 141 N. Y. 389 ; 57 St. Rep. 601; Inre Hunt's Will, 110 N. Y. 278 ; 18 St. Rep. 118, and in that case, at page 281, 110 N. Y., the court says :

“This will must have been presented to the witnesses by the testator for them to sign, and such an act was equivalent to a communication by him that he intended to give effect to the paper as his will. If the paper was signed in the presence of the witnesses, the act was a sufficient compliance with the statute as to an acknowledgment of the subscription.”

The request to sign is sufficient if made by the person superintending the execution of the will in the hearing of the testator, and with his silent permission and approval. In re Nelson's Will, 141 N. Y. 157; 57 St. Rep. 678, and cases cited.

The effect of the surrogate’s action upon this will in striking out. the codicil is to defect the purpose and intention of the testator, establish a will not made by the testator, and it should not, under the-evidence, be permitted. The proof before the surrogate required him to admit this will to probate as an entirety ; and while the Code (section 2622) devolves upon the surrogate the duty of being “satisfied of the genuineness of the will, and the validity of its execution,” still he must be so satisfied when the proof taken together establishes what the statute requires; and this court has. the power, under section 2586, to decide the question of fact which the surrogate had before him. There being no substantial conflict in the evidence as to the fact of the execution of this will, this court should direct that the original probate of this will should be confirmed. In re Bapjolie’s Will, 50 St. Eep. 239 ; In re Hunt's Will, 110 N. Y. 278; 18 St. Eep. 118.

The decree of the surrogate of Chautauqua county appealed from should be reversed, and the original probate of the will and codicil confirmed, with costs to the appellant, payable out of the property of the deceased. All concur.  