
    Lemuel A. Wyman and Fanny Wyman, His Wife, Respondents, v. Mary Wyman, Individually and as Executrix, etc., of Isaac Wyman, Deceased and Others, Appellants, Respondents, Impleaded with Maud Heilbron and Others, Respondents, and Randolph A. Wyman and Gerard B. Heilman, Appellants.
    First Department,
    March 8, 1907.
    Will—when probated against testimony of subscribing witnesses — facts not showing lack of testamentary capacity—when action of ' partition does not lie.
    A will may be probated notwithstanding the'lack of memory of a subscribing witness or even in the face of his positive testimony denying proper execution.
    The testator, a lawyer fifty-seven' years of age, two years before his death and when death was apprehended, made a holographic will which he carefully preserved. On probate the witnesses testified to due execution and to the testamentary capacity of the testator, but three years thereafter in an action of partition, while admitting their signatures to the attestation clause, denied the formalities of execution' which they had previously sworn to. On all the evidence,
    
      Held, that the will was properly admitted to probate and that the proof did not establish lack of testamentary capacity.
    
      The will gave the whole residuary estate ‘‘ absolutely and in iee simple to my beloved Wife,. * * * her heirs and assigns forever. ■* * * After the death of my beloved wife * * * 1 request that my estate be closed up, should it be consistent so to do, and the.proceeds to be divided share and share alike amongst my then living children."
    
      Held, that, irrespective of whether the widow took the estate in fee simple or a . life estate, an action for partition would not lie during her life.
    Appeal by the defendants, Mary Wyman, individually and as executrix, etc., and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New. York on the 3d day of March, 1905, upon the decision of the court rendered after a trial at the New York Special Term.
    Also an appeal by the defendants, Randolph A. Wyman and. Gerard B. Heilman, from the whole of said judgment.
    
      Leo Levy [(C. Arthur Levy with him on the brief], for the appellant, respondent, Mary Wyman.
    
      C. Elliott Minor, for the appellants, respondents, Lorsch.
    
      David, B. Cahn, guardian ad litem for the infants Wyman and Heilman, appellants.
    
      Lewis M. Isaacs of counsel [Harry Mack, attorney], for the plaintiffs, respondents.
   Claeke, J.:

This is an action for partition in which the interpretation of a' will is asked, brought by an alleged devisee under the will. An issue is raised by one of the defendants, a daughter of the decedent, that the testator at the time he executed the will did not have testamentary capacity, and that the instrument was not signed, published and declared in the manner provided by law so as to be entitled to probaté as a last will and testament.

Upon the trial plaintiff offered in evidence the deeds establishing the title of the premises in question in the decedent at the time of his death and the record from the Surrogate's Court showing the admission to probate on the 26th day of January, 1904, of the will of Isaac.Wyman, dated May 26, 1902, as a will of real and pérsonal property, and the necessary evidence as to the heirs at law of the decedent, and rested.

Section 2627 of the Code of Civil Procedure provides that a decree admitting to probate a will of real property made as prescribed in article 1 of title 3 of chapter 18 of the Code of Civil Procedure, establishes presumptively only all the matters determined by the surrogate pursuant to said article as against a party who was duly cited or a person claiming from, through or under him. The defendant-appellant thereupon undertook to destroy that presumption.

The testator was fifty-seven years of age at the time of his death on January 11, 1904. The will bears date and purports to have been executed on the 26th day of May, 1902. The decedent ivas a lawyer and an insurance man. The will is holographic and contains a complete attestation clause and is signed by three witnesses, each of whom attaches his address to his signature. The will was found after- the testator’s death in his safe at his house in an envelope sealed with two sealing wax seals with the impression of his watch charm. Said envelope bore the inscription in the handwriting of the decedent “ Last will and testament of Isaac Wyman ” and “ May 26, 1902.” With the envelope containing the will was found a second envelope containing the inscription in the. decedent’s handwriting, “Notice. In case of my death, I request my family to open this letter of instructions and wishes immediately. I. Wyman,” and on the back of this envelope the following, “Isaac Wyman, 48 East 91st St., New York.” In this latter envelope were instructions as to the conduct of his funeral, funeral notice to be inserted in the papers, and a desire that his wife should furnish all his daughters their mourning suits and pay for the same, and that they should be dressed alike.

The testator was suffering with tuberculosis of the throat, and upon the advice of his physician went to the Adirondacks for his health within a day or two after the date of the will, May 26,1902. From this fact and from the contents of these papers, it is a conclusive inference that, knowing the condition of his health and mindful of the uncertainty of life, he had put in order his worldly affairs before going away. As the will was in his own handwriting and was carefully preserved in his own possession in the safe in his own house for nearly two years after its execution, the envelope containing it indorsed with his own statement that it was his last will and testament, it is impossible to reach any other conclusion than that, so far as he was concerned, he had intended to dispose of. his property by a valid last will and testament, and that lie supposed that he had done so. • "

Two of the attesting witnesses appeared on the probate proceedings on the-26th day of January, 1904, before the assistant to the surrogate and subscribed the usual depositions in probate proceedings, which depositions contain the verification of said assistant that the witnesses were sworn and examined before him on that day. Cohn’s deposition contains the statement that he had been acquainted with the decedent fifteen years before his death, and Traub’s that he had been acquainted with the decedent for twenty years before his death, and each contains the statement that the subscription of the name of the decedent was made by him ill the presence of deponent and the other two subscribing'witnesses, naming them ; that at the time of said subscription to said instrument decedent declared the instrument so subscribed by him to be his last will and testament, and that the deponent then signed his name, as witness at the end of said instrument at the request of said decedent' and in his presence,, and that the decedent at the time of executing said instrument was, in the opinion of said deponent, of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will; that deponent saw the other subscribing witnesses sign their names as witnesses at the end of said will arid knows that they did so at the request and in the presence of the decedent.

There is no dispute but that the body of the will is in the handwriting of the decedent and was written, with a broad-nibbed pen and in one kind of ink, while the signatures of the decedent and of each of the three subscribing witnesses with their addresses added are written with a sharp-pointed pen and with 'an ink different from that used in the body of the will, but of. a similar appearance as to each of the signatures. There is also no dispute but that each of the four signatures to the will is in the proper hand^ ' writing of each of the persons purporting to have signed the same.

Nearly three years after the date.of the will and one year after its probate upon the depositions of two of the subscribing witnesses these witnesses attempt to destroy this instrument, which undoubtedly embodies the testamentary intentions of the decedent, by evidence given upon the trial in flat contradiction to the attestation clause subscribed by them and to their depositions in the probate proceedings. They testified "that at the time they signed the paper they did not know that it was a will, although each of them added his residence to his signature, a will being the only instrument to which the law requires that the residences of the witnesses be so added; that the signature of the decedent was not upon the will when they signed it; that their signatures were not made in the presence of each other, and although each swears that he signed at the request of the decedent that at the tithe of the signing he did not declare it to be his last will and testament. The paper was executed during the morning of May" 26, 1902, at a saloon which had been the common meeting place of all of these parties for a number of years. There seems to be no doubt but that the pen and ink with which all the signatures were written was furnished by the barkeeper who testified that shortly before the decedent went away to the Adirondaclcs he remembered an occasion of the signing of a paper by the decedent and these witnesses when he furnished the pen and ink.

The subscribing witnesses contradict each other in some respects in the account of the proceedings upon the morning that they admit they signed the paper. In view of the fact that the decedent was a lawyer and, therefore, acquainted with the requirements of the statute (2 R. S.-63, § 40) in regard to the necessary formalities in the execution of a last will and testament; that he drew the instrument with his own hand ; that the attestation clause is full and complete; that the signature of the witnesses is followed by their several addresses; that the paper, was kept carefully preserved, marked last will and testament of Isaac Wyman in the decedent’s safe, together with a letter of instructions as to the details of his funeral in his own handwriting, in view of the presumption arising from the signatures being attached to the attestation clause and from the depositions taken before the assistant to the surrogate on the probate proceedings I think that the learned trial court who saw and heard the witnesses upon the stand was entirely justified in rejecting their oral testimony and in the conclusion reached by him of the due factiun of the. will. Under such circumstances, the. conclusion reached by the trial court, is of very great importance-. Independent of that, upon the printed record as made, we are- entirely satisfied with this conclusion."

There are-many cases in the books in which, the validity of a will has been established notwithstanding the forgetfulness of the subscribing witnesses • or their positive "testimony as to tlie failure to observe the- prescribed formalities.

Matter of Cottrell (95 N. Y. 329) cites many of such cases and is-, a direct authority for the conclusión which we have reached in the case: at bar. In that case; as in this, there was, a. holographic will, not only properly signed and executed by the testator,, but also signed by the witnesses and appearing'upon its face to be entirely regular and purporting to have been' executed with all the. formalities and in the. manner required by law to; make á good, and valid will, but the two persons purporting to have signed that will as subscribing witnesses not only testified that none of the formalities required by the statute: were conqdied with in its execution in. their presence, but also positively denied that either of them was present at its execution or signed the attestation clause. Yet, nevertheless, the decree of the surrogate admitting the will to probate was affirmed by the General Term and by the Court of Appeals. Chief Judge Bugeb said: It. would seem from the language of the Code that proof of the handwriting -of the testator and of the subscribing witnesses to a proper attestation clause, was regarded as the most important and conclusive fact on the trial of ah issue as- to a proper execution of a, will. Such evidence in connection with, other circumstances tending- to prove "its due execution would seem, within all the authorities to justify a decree admitting it to probate, even against the positive evidence of the subscribing witnesses. If was always- considered to afford a strong presumption of a "compliance with -the: requirements of the statute in relation to the execution of wills that they, had been conducted under the supervision of experienced persons, familiar not only with the forms required by" the law, but also with the iihpoftance of a strict adherence, thereto-.” The learned judge proceeded/ to- find-that presumption in -that case because the testator had not only once correctly gone through the ceremony of executing a will, but by drawing the attestation clause in question he had at the time necessarily brought before his mind each one of the conditions imposed by the statute as necessary to its valid execution. “It is quite unreasonable to suppose that such a person having drawn and signed a will and having added thereto a proper attestation clause, should have provided witnesses therefor and required them to sign a certificate to the effect that each of the required formalities had then been observed, without also providing for their actual performance.” This presumption is all the stronger in the case at bar, because the decedent was a lawyer and drafted his own will with the proper attestation clause.

Upon the issue of the want of testamentary capacity the learned trial court said that it entertained “ absolutely no doubt that he had that intellectual and mental power requisite for the execution of a will”

In my opinion the evidence justified and required that conclusion.

The will, after providing for the payment of the decedent’s just debts and funeral expenses, and for a gift to each of his children .of the sum of $100, provided as follows: “Third. All the rest and residue of my property, real, personal or mixed, wheresoever situated, which I now own or may hereafter acquire and of which I shall die seized or possessed, I give, devise and bequeath absolutely and in fee simple to my beloved wife, Mary Wyman, her heirs and assigns forever-—-with this proviso and exception, that in case she should remarry, then I direct my children to take legal proceedings and have her removed as executrix. * * * Fifth. After the death of my beloved wife, Mary Wyman, I request that my estate be closed up, should it be consistent so to do, and the proceeds to be divided share and share alike amongst my then living children.”

The learned trial court held that under the said will the four children “ are together seized and possessed of the remainder in fee of the real estate described in the complaint, as tenants in common, subject to the life estate therein of their mother, the defendant Mary Wyman, and subject to be divested by the death of any of the said remaindermen before the death of their mother, the said Mary Wyman,” and “ That the defendant Mary Wyman is seized of the life estate for and during her natural life, of said real property,” and dismissed the complaint as to the partition and as to the construction of the will ordered judgment as found.

We do not agree with this construction of the will.

But it is unnecessary in this action to determine the precise estate given to the widow; for whether she holds, an estate in fee simple or a life estate, this action for partition cannot be maintained.

The judgment should, therefore, be modified by striking out therefrom so much as construes the will, and as so modified affirmed, with costs to the executrix and the guardians ad litem to be paid out of the estate.

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ.. concurred.

Judgment modified as directed . in opinion, and as modified affirmed, with costs to the executrix and guardians payable out of the estate. Settle order on notice. 
      
       See Code Civ. Proc. .§ .3630.—.[Rep.: -
     