Opinion
January 31, 1961
Marvin Schacher for petitioner.
This is a probate proceeding in which the propounded instrument consists of eight pages written in longhand and a ninth page following the signatures of the decedent and the witnesses. A great part of the instrument has been stricken out by lines drawn through the writing. The pages are not all the same size, nor is the paper used all of one kind or quality. There is no continuity in the wording which would connect the pages, although all of the pages except the ninth page are numbered serially. Rust marks appear on the upper portion of the first page, indicating the possibility that the sheets were clipped together. However, there are no paper clips attached to confirm this possibility. The signature of the decedent appears three times on page eight. The witnesses also signed on page eight. Each dated the instrument when he signed as a witness, one on September 16, 1952, and the other on October 1, 1952. Several portions on different pages of the writing have been crossed out by drawing lines through the words, and some new matter has been inserted.
At a hearing in this matter both witnesses testified that they do not know whether the lines drawn through parts of the writing were made before or after the instrument was signed by them. Neither witness could remember whether the pages were the same ones they saw at that time.
The proponent has the burden of proving the due execution of the instrument as a will, and "it must be established that all the writing formed a single instrument which the testatrix subscribed and which she published as her will in the presence of the attesting witnesses" ( Matter of Allen, 282 N.Y. 492, 496).
Under the circumstances the court is not satisfied that the instrument offered for probate was properly executed, or that it is genuine.
The alternative prayer of the petitioner to be appointed administrator of this estate is granted, upon his duly qualifying according to law. Submit decree.