
    In the Matter of the Probate of the Last Will and Testament of Sarah Ann Stevens, Deceased.
    
      (Surrogates Court, Cattaraugus County,
    
    
      Filed July 11, 1888.)
    
    Will—Insertion of clause after execution of—Effect of.
    . After the testatrix had signed the will offered for prohate, fully understanding all of its contents and expressing her assent thereto, and it had been fully made and executed, the testatrix stated to the scrivener that her household furniture, etc., she wished to bequeath to Jane Myers, except a bureau, which she was to give S. The draftsman accordingly wrote these ■directions on a separate piece of paper, read what he had written to testatrix and stated where he would paste that in the will when he reached home. It was produced upon the trial with this interpolated clause pasted on the paper propounded (the instrument having been cut into to permit that clause to be inserted in the proper place as the seventh clause of the will). There was no republication of the will after that clause had been written; it was not in anyway attached to the will at the time of the execution, nor in the presence of testatrix or the witnesses. The proponents offered the will for probate exclusive of this interjected portion. Held, that it should be admitted to probate. That the attempted change was an unsuccessful attempt to make a codicil to the will. That the will was not thereby rendered invalid.
    
      J. G. Johnson, for proponent; F. H. Dowd, for contestants.
   Spring, S.

The testatrix in this case was of sufficient mental capacity at the time of the execution of the will propounded; she was under no restraint, and the statutory formalities were well complied with in the execution of the will. The point of the controversy is this: After the testatrix had signed the will fully understanding all of its contents and expressing her assent thereto, in fact after the will had been fully made and executed, the testatrix stated to the scrivener that her household furniture, clothing and bedding, she wished to bequeath to Jane Myers, except a bureau which she was to give to Edward Stevens. The' draftsman accordingly wrote these directions on a separate piece of paper, read what he had written to testatrix, and stated to her he would paste that in the will when he reached home. It was produced upon the trial with this interpolated clause pasted on the paper propounded—the instrument having been cut into to permit that clause to be inserted in the proper place as the seventh subdivision of the will. There was no republication of the will after that clause had been written, it was not in anyway attached to the will at the time of the execution, nor in the presence of testatrix or the witnesses, nor was any force given to it as a testamentary provision by what there occurred.

The proponent offers the will for probate exclusive of this interjected portion.

This controversy is another illustration of the folly of those unfamiliar with the indispensable formalities of the statute as to the execution of wills attempting to supervise their attestation.

However, notwithstanding the blundering by the draftsman, I do not think the will was vitiated. It was fully and formally executed prior to the conversation in reference to the disposition of the property contained in the inserted clause. The provisions of the will had been dictated to the draftsman by the testatrix, had been written as she requested, and had been carefully read to her and approved of by her. It was a completed thing when signed by the attesting witnesses. The jugglery by which the will was sought to be changed, was like an unsuccessful attempt to make a codicil to a will. The original will is not rendered invalid by a failure to have the codicil properly executed. If this transaction had occurred on the day succeeding the execution of the will, it would not be claimed that it could have a retroactive effect by nullifying the will.

The same is true in any case, however brief the time may be intervening the completion of the will and the attempted alteration. The pivotal point in such cases must be to ascertain whether or not there was an actual complete execution of the will. If so, any subsequent conversation or conduct by the testatrix cannot vitiate it unless it is tantamount to a revocation codicil, or destruction of the will. See Brady v. McCrosson, 5 Redf., 431.

The cases of Sisters of Charity v. Kelly (61 N. Y., 415), and in re O’Neil (91 N. Y., 516), are not applicable to the case under consideration. In each of those cases the testator failed to sign the will at the end, as required by the statute. Mrs. Stephens signed the will as a finished, completed instrument, at the end thereof.

Nor is there anything in the point that one of the subscribing witnesses wrote the name of the testatrix. She wrote it at the request of testatrix, and a request which was accompanied with a mention of her name in full. That is a sufficient subscription. Robins v. Coryell, 27 Barb., 556 ; Redfield’s Sur. Pr. (3d ed.), pp. 163, 164; 44Barb., 494.

A decree will be entered admitting said will to probate, exclusive of the inserted clause.  