
    In the Matter of Harvey Snide, Deceased. Rose Snide, Appellant; David W. Johnson, as Guardian ad Litem of David Snide, Respondent.
    Submitted January 14, 1981;
    decided February 19, 1981
    
      POINTS OF COUNSEL
    
      Edward A. Cunningham and Samuel Lawrence Brennglass for appellant.
    The Surrogate’s Court has jurisdiction to probate the propounded instrument. (Nelson v McDonald, 61 Hun 406; Matter of Bacon, 165 Misc 259; Matter of Runk, 200 NY 447; Matter of Raymond v Davis, 248 NY 67; Matter of Chusid, 60 Misc 2d 462; Matter of Young, 80 Misc 2d 937.)
    
      David W. Johnson for respondent.
    I. The law of New York is clear that a will of another, mistakenly signed by deceased as his own will, may not be admitted to probate. (Matter of Bacon, 165 Misc 259.) II. A will of another, mistakenly signed by the deceased as his own will, may not be reformed so as to constitute the deceased’s will under the equitable powers of the Surrogate’s Court. (McLean v Hart, 228 App Div 379; Matter of Goettel, 184 Misc 155.)
   OPINION OF THE COURT

Wachtler, J.

This case involves the admissibility of a will to probate. The facts are simply stated and are not in dispute. Harvey Snide, the decedent, and his wife, Rose Snide, intending to execute mutual wills at a common execution ceremony, each executed by mistake the will intended for the other. There are no other issues concerning the required formalities of execution (see EPTL 3-2.1), nor is there any question of the decedent Harvey Snide’s testamentary capacity, or his intention and belief that he was signing his last will and testament. Except for the obvious differences in the names of the donors and beneficiaries on the wills, they were in all other respects identical.

The proponent of the will, Rose Snide, offered the instrument Harvey actually signed for probate. The Surrogate decreed that it could be admitted, and further that it could be reformed to substitute the name “Harvey” wherever the name “Rose” appeared, and the name “Rose” wherever the name “Harvey” appeared. The Appellate Division reversed on the law, and held under a line of lower court cases dating back into the 1800’s, that such an instrument may not be admitted to probate. We would reverse.

It is clear from the record, and the parties do not dispute the conclusion, that this is a case of a genuine mistake. It occurred through the presentment of the wills to Harvey and Rose in envelopes, with the envelope marked for each containing the will intended for the other. The attorney, the attesting witnesses, and Harvey and Rose, all proceeding with the execution ceremony without anyone taking care to read the front pages, or even the attestation clauses of the wills, either of which would have indicated the error.

Harvey Snide is survived by his widow and three children, two of whom have reached the age of majority. These elder children have executed waivers and have consented to the admission of the instrument to probate. The minor child, however, is represented by a guardian ad litem who refuses to make such a concession. The reason for the guardian’s objection is apparent. Because the will of Harvey would pass the entire estate to Rose, the operation of the intestacy statute (EPTL 4-1.1) after a denial of probate is the only way in which the minor child will receive a present share of the estate.

The gist of the objectant’s argument is that Harvey Snide lacked the required testamentary intent because he never intended to execute the document he actually signed. This argument is not novel, and in the few American cases on point it has been the basis for the denial of probate (see Nelson v McDonald, 61 Hun 406; Matter of Cutler, 58 NYS-2d 604; Matter of Bacon, 165 Misc 259; see, also, Matter of Pavlinko, 394 Pa 564; Matter of Goettel, 184 Misc 155). However, cases from other common-law jurisdictions have taken a different view of the matter, and we think the view they espouse is more sound (Matter of Brander, 4 DOM L Rep 688 [1952]; Guardian, Trust & Executor’s Co. of New Zealand v Inwood, 65 NZ L Rep 614 [1946] [New Zealand]; see Wills, 107 U of Pa L Rev 1237, 1239-1240; Kennedy, Wills-Mistake-Husband and Wife Executing Wills Drawn for Each Other — Probate of Husband’s Will With Substitutions, 31 Can Bar Rev 185).

Of course it is essential to the validity of a will that the testator was possessed of testamentary intent (Matter of May, 241 NY 1; 64 NY Jur, Wills, § 11; see EPTL 1-2.18), however, we decline the formalistic view that this intent attaches irrevocably to the document prepared, rather than the testamentary scheme it reflects. Certainly, had a carbon copy been substituted for the ribbon copy the testator intended to sign, it could not be seriously contended that the testator’s intent should be frustrated (Matter of Epstein, 136 NYS2d 884; see 81 ALR2d 1106, 1120-1121). Here the situation is similar. Although Harvey mistakenly signed the will prepared for his wife, it is significant that the dispositive provisions in both wills, except for the names, were identical.

Moreover, the significance of the only variance between the two instruments is fully explained by consideration of the documents together, as well as in the undisputed surrounding circumstances. Under such facts it would indeed be ironic — if not perverse — to state that because what has occurred is so obvious, and what was intended so clear, we must act to nullify rather than sustain this testamentary scheme. The instrument in question was undoubtedly genuine, and it was executed in the manner required by the statute. Under these circumstances it was properly admitted to probate (see Matter of Pascal, 309 NY 108, 113-114).

In reaching this conclusion we do not disregard settled principles, nor are we unmindful of the evils which the formalities of will execution are designed to avoid; namely, fraud and mistake. To be sure, full illumination of the nature of Harvey’s testamentary scheme is dependent in part on proof outside of the will itself. However, this is a very unusual case, and the nature of the additional proof should not be ignored. Not only did the two instruments constitute reciprocal elements of a unified testamentary plan, they both were executed with statutory formality, including the same attesting witnesses, at a contemporaneous execution ceremony. There is absolutely no danger of fraud, and the refusal to read these wills together would serve merely to unnecessarily expand formalism, without any corresponding benefit. On these narrow, facts we decline this unjust course.

Nor can we share the fears of the dissent that our holding will be the first step in the exercise of judicial imagination relating to the reformation of wills. Again, we are dealing here solely with identical mutual wills both simultaneously executed with statutory formality.

For the reasons we have stated, the order of the Appellate Division should be reversed, and the matter remitted to that court for a review of the facts.

Jones, J.

(dissenting). I agree with the Appellate Division that the Surrogate’s Court had no authority to reform the decedent’s will and am of the conviction that the willingness of the majority in an appealing case to depart from what has been consistent precedent in the courts of the United States and England will prove troublesome in the future. This is indeed an instance of the old adage that hard cases make bad law.

Our analysis must start with the recognition that any statute of wills (now articulated in this State at EPTL 3-2.1) operates frequently to frustrate the identifiable dis-positive intentions of the decedent. It is never sufficient under our law that the decedent’s wishes be clearly established; our statute, like those of most other common-law jurisdictions, mandates with but a few specific exceptions that the wishes of the decedent be memorialized with prescribed formality. The statutes historically have been designed for the protection of testators, particularly against fraudulent changes in or additions to wills. “[W]hile often it may happen that a will truly expressing the intention of the testator is denied probate for failure of proper execution, it is better that this should happen under a proper construction of the statute than that the individual case should be permitted to weaken those provisions intended to protect testators generally from fraudulent alterations of their wills” (64 NY Jur, Wills, § 198, p 348).

Next it must be recognized that what is admitted to probate is a paper writing, a single integrated instrument (codicils are considered integral components of the decedent’s “will”). We are not concerned on admission to probate with the substantive content of the will; our attention must be focused on the paper writing itself. As to that, there can be no doubt whatsoever that Harvey Snide did not intend as his will the only document that he signed on August 13, 1970.

Until the ruling of the Surrogate of Hamilton County in this case, the application of these principles in the past had uniformly been held in our courts to preclude the admission to probate of a paper writing that the decedent unquestionably intended to execute when he and another were making mutual wills but where, through unmistakable inadvertence, each signed the will drawn for the other. Nor had our courts blinkingly invoked a doctrine of equitable reformation to reach the same end. (Nelson v McDonald, 61 Hun 406; Matter of Bacon, 165 Misc 259; Matter of Egner, 112 NYS2d 568; Matter of Cutler, 58 NYS2d 604; subsequently, contra Matter of Iovino, NYLJ, April 16, 1980, p 14, col 5 [an uncontested case].)

On the basis of commendably thorough world-wide research, counsel for appellant has uncovered a total of 17 available reported cases involving mutual wills mistakenly signed by the wrong testator. Six cases arise in New York, two in Pennsylvania, three in England, one in New Zealand and five in Canada. With the exception of the two recent Surrogate’s decisions (Snide and Iovino) relief was denied in the cases from New York, Pennsylvania and England. The courts that have applied the traditional doctrines have not hesitated, however, to express regret at judicial inability to remedy the evident blunder. Relief was granted in the six cases from the British Commonwealth. In these cases it appears that the court has been moved by the transparency of the obvious error and the egregious frustration of undisputed intention which would ensue from failure to correct that error.

Under doctrines both of judicial responsibility not to allow the prospect of unfortunate consequence in an individual case to twist the application of unquestioned substantive legal principle and of stare decisis, I perceive no jurisprudential justification to reach out for the disposition adopted by the majority. Not only do I find a lack of rigorous judicial reasoning in this result; more important, I fear an inability to contain the logical consequences of this decision in the future. Thus, why should the result be any different where, although the two wills are markedly different in content, it is equally clear that there has been an erroneous contemporaneous cross-signing by the two would-be testators, or where the scrivener has prepared several drafts for a single client and it is established beyond all doubt that the wrong draft has been mistakenly signed? Nor need imagination stop there.

For the reasons stated, I would adhere to the precedents, and affirm the order of the Appellate Division.

Judges Jasen, Fuchsberg and Meyer concur with Judge Wachtler; Judge Jones dissents and votes to affirm in a separate opinion in which Chief Judge Cooke and Judge Gabrielli concur.

Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the matter remitted to the Appellate Division, Third Department, for further procedings in accordance with the opinion herein.  