Opinion
May, 1920.
Howard C. Kelly, for proponent.
The propounded instrument consists of a sheet of paper folded so as to make two leaves and four pages. Upon the 1st page is the printed form of a will having the usual blank spaces which are filled in with handwriting. Several legacies are set forth and the blank space provided for that purpose being filled and apparently being too small for the additional provisions which the decedent desired to make, there appear the words "continued on next Page." A paragraph providing for the appointment of executors then follows, after which are the testimonium clause, the signature of the decedent and of the two attesting witnesses, an attestation clause and again the signature of the attesting witnesses and their respective addresses.
On the 2d page, in apparently the same handwriting as that upon the 1st page, is the following:
"My place Business is to be sold as soon as a fair price avails or can be realized. The house situated at 1051 Tinton ave which is owned by my sister Minnie F. Goerlich and myself, jointly, should be sold as soon as is most convenient and a good price can be realized, after all has been attended to the money should be added to my cash in the Yorkville and the Maiden Lane Banks, and divided as stated on front page, this is my wish and must be so attended to. I also state there shall be no Bondsmen needed in executing this my Will."
One of the witnesses died and her handwriting was duly proved. The other witness testified to the proper execution of the 1st page of the paper, but denied any knowledge as to whether the writing on the 2d page was or was not there when the testator affixed his signature after the testimonium clause.
The phrase "continued on next Page" which appears on the 1st page and the provision on the 2d page that "the money should be added to my cash in the Yorkville and the Maiden Lane Banks, and divided as stated on front page" lead to the conclusion that the writing on the 2d page was upon the document when the decedent executed the paper and this is strengthened by the appearance of the writing itself. There is no suggestion of fraud. The writing on the 2d page is undoubtedly material, substantial and dispositive in character. Matter of Blair, 84 Hun, 581, 584; Matter of Gedney, 17 Misc. 500.
In Matter of Schroeder, 98 Misc. 92, I had occasion to consider an instrument very much similar to the one now before me, and upon the reasoning of that case and the authorities cited, I find that the propounded document is not signed at the end and that probate must be denied. See, also, Matter of Fox, N YL.J. Dec. 30, 1919.
Probate denied.