
    In the Matter of the Will of Amanda Sanderson, Deceased.
    
      (Surrogate’s Court, Orleans County,
    
    
      Filed September, 1894.)
    1. Will — Execution.
    Facts sufficient to establish that testatrix signed and acknowledged her will in the presence of the witnesses.
    2. Same — Signature.
    Where provisions relating to the sale and disposition of the estate intervene between the signature and the attestation clause, there is no • signing at the end of the will.
    3.’ Same.
    A paper containing disposing clauses cannot be made part of a yalid will by a reference thereto in the will.
    4. Same — Validity.
    The fact that a valid will refers to a paper which cannot be identified does nullify the will.
    Probate of will.
    Wbedon & Ryan, for proponent; Theodore L. Gross, for com testant.
   Signor, S.

Tbe decedent left two papers, each in a separate envelope, sealed. On one envelope was written “Amanda Sanderson’s Will, Shelby, Orleans County, New York.” On the other, “Amanda Sanderson’s Will. I direct that this shall not be opened until after the death of my brother Stewart and my sister Harriett. ” Both indorsements were in the handwriting of the testatrix, but were not signed. In the first envelope Was a paper giving the possession and use of all her estate to her brother and sister, and containing this provision, “and from and after the death of the longest lives of my said brother and sister, I give, devise and bequeath my said estate to persons named on another sheet, and inclosed in another envelope, which shall not be opened until after the death of my said brother and sister.” This paper, as well as the other, purports to have been executed May 28', 1892, and this- appears to have been executed in due form.

The other envelope contained a paper containing two' small bequests, and gives the remainder to Charles Sanderson, names an executor, contains the usual attestation clause, and is signed by two witnesses, and is also signed by the testatrix with the usual attestation clause. Between the signature of the testatrix and the attestation clause of the two witnesses these words are inserted: “I direct my land shall be sold, including what I have hedred, and the money securely sent to the foregoing bequests. I direct that my brother, Clinton Sanderson, shall take charge of my household effects, and I direct you to send one-half of the- effects to Mrs. Nettie Tracy, of Madison, Madison county, New York. Take one-fourth for yourself, and the remaining one-fourth you may distribute to Sister Eleanor Barker’s children and to Mrs. Mary S, Parker, as you deem it advisable.” No mention is made of the other paper in this last one. It is also- to be noticed that the first paper is written only on one side of each of the half ’sheets of a sheet of legal cap-, so that between the final disposing clause of that paper and the clause appointing an executor there is an entire blank space of one page.

One witness swears: “Amanda told us she had a couple of papers she wanted us to sign; said that was her will; Would like to have us sign it; that was all that transpired that I can remember. Then Mr. Eckerson signed it first, and I signed after him. We both signed both papers. . . . We were both in the room when she said she wanted us to sign it. I think it was after we signed it that she said it was her will; I am not sure whether before or after; I know she said it; she told us to sign both of them. ... I don’t remember whether she signed her name there or not. The words. ‘28th May’ and ‘ninety-two,’ and the signature ‘Amanda Sanderson’ and the witnesses appear to be in the same ink and different from the rest of the will.”

William Eckerson, the other witness, says she handed him the pen to sign his name and said it was not a very good one. “She pointed out the line where I should sign; I think that is all; my memory is not as good as it used to he; some things it bothers me to hear unless people talk very loud. I can’t say whether she did or did not say it was her will. . . . She took the papers up and turned and sat at the desk; I did not see her sign them: I think she was folding them up. ... I think to the best of my recollection she folded the papers without writing; I did not hear her say anything about there being a will; she might have said it and I did not hear her.” On cross-examination he says: “I don’t pretend that I can remember everything that was said. . . . She was not a loud-speaking person; I did not specially notice it enough to know whether there was any signature or not; I can’t say that the signature was there or was not there.”

It seems quite evident from the fact before referred to that the date, the name of the testatrix and the witnesses’ names were all in the same kind of ink and different from the main body of the will, and that, as the witness remembers, she folded up the papers without signing, after they had signed, as well as her having the pen before they signed, her remark about the pen, and her statement, as remembered by the other witness, that it was her will, as well as her having written the attestation clause, showing that she knew what was required, that she wrote her name with the same pen and ink at some time before the witnesses; so far as the signing in the presence of the witnesses and the acknowledgment of the will, I think those facts are established within the ruling in Matter of Hunt, 110 N. Y. 278.

The evidence in the case is simply that the witnesses do. not remember whether the will was signed or not. One says he did not observe it enough to know whether the name was there, and the other does not remember whether it was signed in their presence or not. The attestation clause, written by the testatrix, states that it was done. It is conceded that the date, the name of the testatrix, and the names of the witnesses, are with a different ink from the body of the will and are in the same ink. It also appears that she had the pen in her hand before they signed, and handed it to the witnesses to sign, remarking that it was not a very good pen, indicating that she had used it. Under these proofs, and with no proof or circumstance indicating that it was not signed and acknowledged in the presence of the Witnesses, I think that it should be held that in these respects it Was properly signed and acknowledged. The presumptions are in favor of such a conclusion. In re Cottrell, 95 N. Y. 329.

The case of Matter of Mackay, 110 N. Y. 611, differs from this that in that case the proof was positive that the testator did not sign in the presence of the witnesses, and that the paper was so folded that the signature could not be seen.

It is true, as laid down in several cases cited by contestant’s counsel, that presumptions will not establish the execution when there is positive proof to the contrary, but such proof is here wanting.

The second paper is void as a will for the reason that it is not signed at the end thereof. After the signature follows the important provisions for a sale of her real estate, and the dis<position of her household effects. Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of Niles, 13 St. Rep. 756.

Neither can this second paper stand as a part of the first. It is not sufficiently identified as the paper referred to, nor can a paper containing disposing clauses be, in this way, made a part of a valid will. Matter of O’Neil, 91 N. Y. 516.

Whether a will with a blank space to the extent found in the first paper, between the disposing clauses and the clause appointing an executor, is signed “at the end thereof,” has been several times discussed, but never judicially determined. Matter of Heady’s Will, 15 Abb. N. S. 211; McCord v. Lounsbury, 5 Dem. 68.

This point was not urged in this case, and while it is a question of importance, and the practice one that should not be regarded with favor, leaving room, as it does, for gross frauds by inserting in the blank space disposing clauses not made by the testator or not properly authenticated, yet in this case, as the will is all in the handwriting of the testatrix, and was apparently all written at the same time, I do not think that the will should be refused probate for this reason.

Neither should the fact that there is a reference to a paper in the valid will which cannot be identified have the effect of nullifying the will. For these reasons the first paper may be admitted as a valid will and the second refused probate.

Ordered accordingly.  