Opinion
May 1, 1931.
Cornelius G. De Loca, for the petitioner.
Sidney L. Tenen, for the contestant.
This probate proceeding presented another instance of a will prepared and supervised as to execution by a notary public. ( Matter of Barry, 119 Misc. 102; Matter of Schaffaus, N YL.J. July 1, 1924; see, also, Law Journal editorial page [correspondence], issues of April 22, 24, 27 and 29, 1931.) The propounded paper is one of the customary printed forms. Before mutilation it presumably consisted of a long sheet folded in foolscap fashion, so as to make two sheets or four pages of legal cap size with printed matter and blank spaces to be filled in. Of the first sheet the lower three-quarters has been creased and torn or cut away, leaving upon the upper part the following:
"IN THE NAME OF GOD, AMEN,
"I, Guiseppa Bongiovanni, being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last Will and Testament, as follows: First, after my lawful debts are paid, I give Gasper Bongiovanni. My Nepthew."
There follows upon the next sheet and partly under the overhanging quarter of front page referred to above this typewritten matter.
"(Fu) (John Bongiovanni.)
"All real and personal properties. (Life Insurance; furnishings of the home; and parcel of land situated; lying in and being in the City of New York; bounded and described as follows: beginning on a point on the Southly side of io9 th. Street Distant easterly (83) feet from the corner by three intersection of the easterly side of Second Ave. with southerly side of (io9) th. Street.
"Runner dense southerly and pararell with Second Ave. and part of this distant through the center of a party wall (68) feet dense easterly parallel with (io9) th. Street; (i7) feet dense northerly pararell with Second Ave. (68) feett to southerly side of (io9) th. Street. and dense westerly long to southerly side of (io9) th. Street; (i7) feet to the point of beginning except any reserving how ever from above on of part there of I oun 2/3 of said property here to fore conveyed to Angelina Bongiovanni.
"Cirrito by party of first part i/3 of the said property.
"I also give to the following (Sister) The sum of $1.00) (One Doller)
"ELIZABETH MARIGASSAREAN "MAMIE DECARLO "JENNIE MALITO "ANGLINA CIRRITO "CASPER BONGIOVANNI (Brother)
"I also give to any who dares to contest this will
"THE SUM OF ONE DOLLAR (i.00)
"I Gueseppa Bongovanni. oun 2/3 of said property and i to Angelina Bongovanna Cirrito as stated above. 3) 3"
Beneath the above in handwriting is the signature "Guiseppa Bongiovanni."
Below said signature is the following: "I hereby appoint Gasper Bongiovanni my Nepthew to be executer of this my last Will and Testament: hereby revoking all former wills To This.
"IN WITNESS WHEREOF, I have hereunto subscribed my name, and affixed my seal, the eleventh day of February in the year of our Lord, one thousand nine hundred thirty.
Notary Public, New York County Clerk's No. 810 New York County Register's No. 927 Term expires March 30, 1930.
"WITNESSES
"NICHOLAS SERRA "SANTO THOMAS MONDELLO JOSEPH J. BOCCIA, "FIORE MANNELLO Notary Public.
"Subscribed by Guiseppa Bongiovanni. the Testator named in the foregoing Will, in the presence of each of us, and at the time of making such subscription the above Instrument was declared by the said Testtor to be her last Will and Testament, and each of us, at the request of said Testator and in her presence and in the presence of each other sign our names as witnesses thereto, at the end of the Will.
"NICHOLAS SERRA residing 321 East 106 St., N.Y.C. "SANTO THOMAS MONDELLO residing 1889-3rd Avenue, N.Y.C. "FIORE MANNELLO residing 810 East 219 St., N.Y.C."At the trial two of the three witnesses named in the paper were called as witnesses. They described the circumstances attending the execution of the paper. No satisfactory explanation was made by the witnesses of the missing three-quarters of the first page. They testified that when they signed, it was in the condition in which it now is. It is unnecessary to discuss the misspelling and the clumsy grammar of the sentences or the interpretation of the same, for the failure of testatrix to sign at the end of the will is fatal. The will is not signed at the end thereof since the important provision appointing an executor is below the signature of testator. ( Matter of Tyner, 138 Misc. 192; Matter of Hewitt, 91 N.Y. 261; Matter of O'Neil, Id. 516; Matter of Andrews, 162 id. 1; Matter of Whitney, 153 id. 259.)
Probate of the propounded paper is denied. Submit decree.