Opinion
Argued January 12, 1982
Decided February 25, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MILLARD L. MIDONICK, S.
Cameron K. Wehringer and Claude Henry Kleefield for appellant. Donald H. Zuckerman for Joseph De Mul, respondent.
Robert Abrams, Attorney-General ( Charles Brody and Shirley Adelson Siegel of counsel), for ultimate charitable beneficiaries, respondent.
Paul Richard Karan and Jorene R. Frenkl for New York Eye and Ear Infirmary, respondent.
The question presented on this appeal is whether a lost will may be admitted to probate upon the submission of a conformed copy of the original will and the testimony of one witness which does not establish the actual substantive provisions of the will independently of the copy. The Appellate Division held that the proof was sufficient to permit the lost will to be admitted to probate. We reverse.
In 1970 the testator, Dr. Georges Kleefeld, executed a will prepared by his attorney. The original will was retained in the attorney's files and the testator was given a conformed copy. The attorney died in 1972 and the testator died in 1979, at which time the original will could not be located in the attorney's files. This proceeding to admit the lost will to probate was commenced by the will proponent pursuant to SCPA 1407. That statute provides as follows: "A lost or destroyed will may be admitted to probate only if 1. It is established that the will has not been revoked. 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete" (L 1966, ch 953).
At trial the proponent submitted evidence that the testator did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The contestants submitted evidence tending to show that the testator had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.
Regarding the third requirement of SCPA 1407, Nadine Baris, the legal secretary who typed the original will, testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. Baris recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it in December, 1970 and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.
The additional facts noted by the dissent were not established by either court below and thus cannot form the basis of a decision by this court (CPLR 5501, subd [b]). In any event, these additional facts in no way affect our interpretation of SCPA 1407 (subd 3) or, therefore, the disposition of this appeal.
The question thus becomes whether the testimony of Baris combined with the submission of the conformed copy of the will "clearly and distinctly" proves all of the provisions of the original will within the meaning of the SCPA 1407 (subd 3) in order to permit the admission of the lost will to probate. The Surrogate's Court held that the three prerequisites for admission of a lost will to probate found in SCPA 1407 had been fully satisfied and admitted the lost will to probate. Specifically, the court found that the presumption of revocation of the will by the decedent testator had been overcome by the testimony that the will was lost while in the possession of the attorney-draftsman and that the contestants did not meet their burden of proving revocation by physical act or superseding will or codicil. Satisfied that the original will had been duly executed, the court interpreted SCPA 1407 (subd 3) as merely necessitating proof of the authenticity of the submitted copy as a true and complete duplication of the original will and held that Baris' testimony sufficiently identified the copy and proved that its contents were identical to the original.
Even if we were to assume, arguendo, as indeed the dissent is at length to demonstrate, that the photocopy was a true and complete copy of the original will, that is not the determinative issue. Under subdivision 3 of the revised statute proof of such a copy must in addition be corroborated by the testimony of one witness clearly and distinctly proving the substantive provisions of the original will. It is this later component which is missing in this instance.
We agree with the dissent at the Appellate Division that the Baris testimony did not satisfy the requirements of SCPA 1407 (subd 3) and therefore reverse.
SCPA 1407 permits the probate of a lost will which has been duly executed and has not been revoked only if "[a]ll of the provisions of the will are clearly and distinctly proved by * * * 1 witness and a copy or draft proved to be true and complete." The plain wording of the statute leads to the conclusion that the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic. Had the Legislature intended the result approved by the majority below it would have undoubtedly provided that probate would be allowed upon the testimony of one witness establishing that a copy or draft is true and complete. We therefore read the statute as requiring that the will provisions be established by the testimony of one witness and that all the will provisions also be established by a true and complete copy.
Similar constructions of the statute by various authorities support the conclusion we reach today. As one commentator has accurately summarized: "After existence of the will and its destruction have been established, the contents must be proved. The statute provides that all of the provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by one witness and a copy or draft of the will proved to be true and correct. In this respect the present statute does not differ from the prior one. Knowledge of the execution of the will is not knowledge of its contents. And while the witnesses need not give the exact language of the will, but merely the substance, each of the witnesses must testify to all the principal parts of the will. A copy of the will takes the place of the second witness, but the witness' supporting letter does not" (1 Harris, New York Estates Practice Guide [3d ed], § 281, p 534; see Goldman, Practice Commentary, McKinney's Cons Laws of NY, Book 58A, SCPA 1407; 2A Warren's Heaton, Surrogate's Court [6th ed], § 179, par 5, at pp 31-92).
The dissent nevertheless argues that the legislative history of SCPA 1407 (subd 3) supports the conclusion of the Surrogate's Court and the majority below. One of the research counsel to the Bennett Commission reported to the commission concerning his proposal to revise the evidentiary requirements to provide: (1) due execution of the lost or destroyed will be established; (2) proof of the contents of the will by each of two witnesses; and (3) a copy of the will should suffice to prove contents (Fifth Report of Temporary State [Bennett] Commission on Modernization, Revision and Simplification of Law of Estates, N Y Legis Doc, 1966, No. 19, Appendix L-10, Report No. 8.2.5A, p 796, July 15, 1964).
The dissent does not dispute that this recommendation was rejected by the Bennett Commission in favor of the rule established by the plain language of SCPA 1407 (subd 3). Although this fact alone disposes of the contention urged by the dissent, we nevertheless find that the legislative history referred to above is, at best, ambiguous and therefore unsupportive of the construction urged. In fact the passage relied on can be interpreted to support our construction of the statute for it states the general rule that the contents must be established by the testimony of two witnesses, but proposes an exception that a copy "should suffice to prove the contents", meaning that a copy should be a permissible substitute for the testimony of one of the witnesses. Section 143 of the Surrogate's Court Act, the predecessor to SCPA 1407, expressly required the testimony of "at least two credible witnesses, a correct copy or draft being equivalent to one witness". It is, therefore, doubtful that the author of the passage intended to propose a radical alteration of existing law by suggesting that a copy of the will should serve as a sufficient substitute for the testimony of two witnesses instead of one.
But even if the legislative history of SCPA 1407 were construed to support the position that a copy of the will alone should constitute sufficient proof of contents, this is not supported by the mandate and the express language of the statute. This court should not ignore the words of a statute, clear on its face, to reach a different result through judicial interpretation (McKinney's Cons Laws of NY, Book 1, Statutes, § 76).
The legislative policy embodied in SCPA 1407 is designed to prevent the probate of fraudulent wills. That policy will be subverted if a will, such as the one at issue here, may be established and admitted to probate merely on the basis of testimony regarding the event surrounding the execution of the will rather than as to the contents of the will itself. A strict construction of the statute in question is therefore essential in order to insure that this legislative policy is properly effectuated. Moreover, SCPA 1407 is a limited statutory exception to the common-law Statute of Wills and should be strictly construed for that reason alone (McKinney's Statutes, § 301; 1 Harris, New York Estates Practice Guide [3d ed], § 281, at p 531).
It is evident in light of the foregoing that Nadine Baris' testimony did not clearly and distinctly prove all the provisions of the will as required by SCPA 1407 (subd 3). Although she recognized her initials on the first page of the conformed copy of the will and that the type was the same used by her typewriter, and testified that the original will contained many provisions and many bequests to foreigners, she also testified that she never read the will after she typed it and therefore could not remember any of its provisions. Although the attesting witnesses remembered various events surrounding the execution of the will, neither of them had read it and were also unable to testify as to the substance of its contents. Thus, assuming that the copy of the will submitted into evidence was actually a conformed copy of the original will, the respondent proponent did not otherwise carry his burden under SCPA 1407 (subd 3) by clearly and distinctly proving all the provisions of the will by at least one credible witness.
Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the petition for probate of the lost will of Georges Kleefeld dismissed.
In my view the majority's conclusion does not accord with the judicial construction of the predecessor provision or the legislative history of the present statute and is inconsistent with the rationale of Matter of Snide ( 52 N.Y.2d 193). I therefore dissent.
At common law "only such an amount and degree of evidence was required, as to the contents of the will, as was necessary to establish any other fact in an action; that is to say, proof of the facts in issue, by a single witness" ( Harris v Harris, 26 N.Y. 433, 437), and that remains the rule, except as changed by statute (cf. Olsen v Olsen, 189 Misc. 1046, 1051). The Revised Statutes of 1829 included provisions relating to the recording by the Surrogate of a lost will after its provisions had been established in a Supreme Court action (see Harris v Harris, supra; Fifth Report of Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, NY Legis Doc, 1966, No. 19, Appendix L-10, p 785). In 1870 the Surrogate's Court was given jurisdiction of such actions and the statutory provision concerning proof of the contents of a lost will found its way into section 143 of the Surrogate's Court Act. That section provided in pertinent part that: "A lost or destroyed will can be admitted to probate * * * but only in case * * * its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness."
The provision, it was held, "should have a liberal construction in furtherance of justice and for the prevention of fraud" ( Hook v Pratt, 8 Hun 102, 109; Early v Early, 5 Redf 376, 380; Matter of De Groot, 2 Connoly 210, 215). With respect to the proof required when there was no copy the rule was, therefore, that although each of the two witnesses must be able to testify as to all of the dispositional provisions ( Matter of Ruser, 6 Dem 31; McNally v Brown, 5 Redf 372), that requirement applied only to the substantive dispositions and not to the appointment of an executor ( Early v Early, supra), and in any event did not require that the witnesses testify to the exact wording of the will, but only to its substance as a whole ( McNally v Brown, supra; Matter of Musacchio, 146 Misc. 626). The prevention of fraud dictated that a person who would take under the will could not be one of the two witnesses, however ( Keery v Dimon, 91 Hun 642, opn in 37 N.Y.S 92, affd 153 N.Y. 662) and that the claimed will not be admitted when the two witnesses disagreed as to its contents ( Sheridan v Houghton, 6 Abb NC 234, mod as to costs, and affd 84 N.Y. 643; Matter of Yanover, 16 Misc.2d 128; Matter of Ruser, supra; McNally v Brown, supra). In sum, the credible testimony of each of two witnesses who could testify to the will's content was sufficient to admit a lost will to probate even though no copy could be produced ( Matter of Graeber, 53 Misc.2d 640; Matter of Fenstad, 22 Misc.2d 408).
When a copy or draft was produced, however, there being less possibility of fraud, the statute directed that the copy or draft take the place of one witness. That direction has been held a number of different times to authorize admission to probate of the will on the testimony of the attorney who drew it or of the secretary who typed it, if only he or she identifies the copy as decedent's will. Thus, in Matter of Granacher ( 74 App. Div. 567, 571) the testimony of the attorney who had charge of the preparation of the will and who, although he could not recall whether he personally wrote it, was acquainted with its contents which he had read to the testatrix, was held "to fully meet the requirements of the statute," and we affirmed ( 174 N.Y. 504) "on the ground that the findings of fact by the surrogate having been affirmed unanimously by the Appellate Division, we are prevented from examining the questions argued." Again, in Matter of Suarez (114 N.Y.S.2d 194, 195), Surrogate FRANKENTHALER admitted a will to probate, stating: "The attorney-draftsman adequately identified the propounded paper as the carbon copy of the original will and this identification, together with his testimony, is sufficient proof of the contents of the will as required by Surrogate's Court Act, section 143." His decree admitting the will to probate was reversed on other grounds ( 281 App. Div. 870), but on retrial he again held that the paper produced had been clearly and distinctly proven and on appeal the later probate decree was affirmed, without opinion ( 283 App. Div. 774). A similar holding will be found in Matter of Breckwoldt ( 170 Misc. 883, 886, 887, 888) where the stenographer who typed and was a subscribing witness to the will having testified "in substance that the contents of the dispositive provisions" of the will were identical with the copy, Surrogate WINGATE, over the contention that testimony of a witness other than the person identifying the will was required, noted that: "It is the conscience of the court which must be satisfied upon this point. As the court reads them, the provisions of the statute in this connection provide merely a rule of caution against too ready a conviction on this issue, and inhibit an expression of such conviction merely upon the unsupported recollection of a single witness. This must be fortified either by corroborative testimony or by documentary demonstration of a satisfactory nature. Whether either will be sufficient for the purpose must, in the nature of things, be remitted to the decision of the trier of the facts. If, on the composite demonstration of the record, he is convinced that the documentary proof adduced is, in fact, a correct draft or copy of the lost will, the statute requires only one witness in addition. The manner in which he shall be satisfied on this point is not specified and obviously may occur in any one of many ways. The point, however, is that if he is so satisfied the will is admissible to probate even though only one witness testifies in its support." He ordered the will be admitted to probate, the case being identical with Matter of Granacher ( supra), in that (p 887) "In both, the copy of the will was introduced into evidence and its correctness certified by a person instrumental in its preparation and in both the same witness testified in substance to the contents of the document, not, it is true, by reciting its provisions verbatim but by incorporating its terms into his testimony by reference, as it were." Like conclusions have been reached in Matter of Reedy (64 N.Y.S.2d 779, 780 [testimony of subscribing witness who typed the will and who produced a carbon copy sufficient]); Matter of Wintjen (101 N.Y.S.2d 606, 607 [contents sufficiently proved by a conformed copy produced by the attorney and by his testimony]); Matter of Juriga (140 N.Y.S.2d 656, 657 [attorney's identification of carbon copy, and his testimony, sufficient proof of contents]); see, also, Matter of Utegg ( 91 Misc.2d 21); Matter of Eisele ( 31 Misc.2d 173); Matter of Haefner ( 4 Misc.2d 835); Matter of Bohnson ( 203 Misc. 116); Matter of Shlevin ( 157 Misc. 40) ; Matter of Dorrity ( 118 Misc. 725). The only contrary New York decision that has been found is Collyer v Collyer (4 Dem 53, 62), which held testimony of a witness other than the person who testifies to the correctness of the draft to be required under the section. Concerning that case it is sufficient to note that the statement was dictum and was not passed upon by either General Term (41 Hun 642) or this court ( 110 N.Y. 481), which expressly noted that the issue had not been considered.
Under an identically worded statute, the Indiana Supreme Court in Barnes v Bosstick ( 203 Ind. 299, 302) held it sufficient that the lawyer who drew the will identified a carbon copy, that being "equivalent to his having orally stated (or read) the contents of the duplicate copy," and the Supreme Court of Arkansas in Bradway v Thompson ( 139 Ark. 542, 554) held that testimony of the attorney who prepared the will identifying a carbon copy and of his secretary that the copy was made by her from dictation by the attorney met the requirements of the statute.
It is, therefore, clear that the Surrogate's Court Act provision did not require that the testimony of the witness "establish the actual substantive provisions of the will independently of the copy" and, as will be hereafter developed, neither does the present statute (SCPA 1407). Indeed, bearing in mind that the will included 48 separate bequests in the event the testator's wife predeceased him, it would be a matter of extreme suspicion had the secretary who typed it been able nine years later to testify as to its "actual substantive provisions." It is, moreover, clear beyond peradventure that the testimony in the instant case fully met the statute's requirements. Nadine Baris' testimony establishes that she read the will in December, 1970, when it was prepared. She identified the photocopy presented to the court as "an exact copy of the original," and testified that she had "checked the original of that photocopy" and was staking her honor and her oath on the fact that it was an exact copy. She recalled not only the initials and date (LK/nmb/12/22/70) that appeared in the upper corner of the first page under the cover and the fact that she had typed them, but that they were the initials of Leonard Kommel (the now deceased attorney who drew the will) and herself and the date was that of the day on which he gave her the will to type, that the material she worked from "was partially handwritten and partially dictated by Mr. Leonard Kommel," that she typed the particular blue back which was on the photocopy presented to the court, that she recognized her typewriter which was different from others in the office, that all of the pages of the copy looked like the type of work she did, and that there were many bequests in the will, some of them out of the country. The Surrogate also noted for the record, and both attorneys for the opponents agreed, that there were no extra staple holes in the copy presented to the court and that "nobody has ever removed these staples and substituted anything." Under the cases detailed above that evidence was sufficient, if believed, to establish the contents of the will. The Surrogate, who had the advantage of seeing and hearing the witnesses, found as a fact that "the contents of the copy were the same as those of the original will" and that finding, having been affirmed by the Appellate Division on the opinion of the Surrogate, is now beyond our review ( Matter of Granacher, 174 N.Y. 504, supra).
(Majority opinion, p 256.)
Kahn v Hoes ( 14 Misc. 63, 73): "After a lapse of seventeen years he shows the same remarkable recollection of details, even to the phraseology of the will and the physical appearance of the draft which is in evidence, which, as I have said, tends to deepen rather than allay doubts which have arisen respecting the facts."
Discussion so far has been in terms of the Surrogate's Court Act provision rather than of the present statute. SCPA 1407 provides that: "A lost or destroyed will may be admitted to probate only if * * * 3. All of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete." (Emphasis added.) Despite the changes in language indicated by italics in the above quotation, the result in the present case is not changed. As the analysis above of the two witness provision of section 143 of the Surrogate's Court Act shows, and as Appendix L-10 to the Report of the Temporary State Commission (NY Legis Doc, 1966, No. 19, pp 794, 796) confirms, clear and distinct proof from " each of two or more witnesses" ( id; italics supplied) was required as a matter of decisional law under that statute and, the copy plus one witness language following after the disjunctive "or" and a repetition of the word "by", the words "each of" cannot be properly read grammatically as modifying the latter provision.
The Appendix at page 796 makes this pellucidly clear: "On the evidentiary side, the statute should be retained with the following adjustments: * * * (2) An adjustment of the language of the present statute to make clear that each of the two or more credible witnesses to the provisions of the lost or destroyed will must prove all of its contents clearly and distinctly."
"Recommendations: * * * Adjustments are recommended in the 'evidentiary' clause of the statute * * * to make clear that each of the two or more witnesses to the provisions of the lost or destroyed will must prove all of its contents" (italics in original).
Thus, the emphasis placed upon the words "each of" in the dissent below (but which the majority in this court does not espouse) was clearly misplaced.
Nor was any change in substance made in the copy plus one witness provision, although a more detailed explanation in proof of that statement is required. The recommendation with respect to that provision was for adjustment "in the 'evidentiary' clause of the statute to make explicit that * * * a true copy or draft of the lost or destroyed will, properly established as such a copy or draft, shall suffice to prove the contents of such a will." The quotation in the majority opinion (p 259) is, therefore, correct so far as it goes, but overlooks the explanation immediately preceding which obviates any doubt concerning what was intended. The explanatory paragraph stated that "On the evidentiary side, the statute should be retained with the following adjustments: * * * A revision of the present statute to provide that a true copy or draft of the lost or destroyed will ( established by cogent evidence) shall suffice, without more, to establish the contents of the lost or destroyed will" (italics supplied).
That recommendation was not adopted by the commission, the bill submitted to the Legislature containing, instead, the language adopted as SCPA 1407 (subd 3) (Report, p 898) and being accompanied by an explanatory memorandum (Report, p 1093) stating that the section was "Surr. Ct. Act § 143 with changes in phraseology and addition of subdivision 2. See [Appendix L-10]." The change in phraseology from "a correct copy or draft" plus one witness to "1 witness and a copy or draft * * * proved to be true and complete" (italics supplied) worked no change in the quality of the evidence required by the statute to admit a lost will to probate. The majority, while ignoring the many cases referred to above (at pp 261-265) dealing with the one witness plus copy provision of the subdivision, supports its construction by quotation from a commentator and by repeatedly referring to the "plain language" of the provision (pp 258, 259). The commentator's text, however, when viewed with its footnotes, refers, it is plain, to the two witness provision rather than the one witness plus copy provision. And no number of repetitions of the "plain language" characterization can convert the words "by 1 witness and a copy or draft of the will proved to be true and complete" into a proscription of proof of the provisions of the will by the testimony of the one witness that the copy is a true and complete statement of its provisions if that testimony is sufficiently credible for the trier of fact to conclude that the copy is in fact the will as executed even though the witness cannot recite by rote all of its substantive provisions. Were there nothing more to the case than the testimony set forth above, the majority's conclusion (p 258) that "the witness must testify as to the substantive provisions of the original will" in some other way than by authenticating the submitted copy as true and complete would, therefore, be incorrect.
Page 61 of the Report states: "It should be carefully noted that the recommendations contained in such reports [the Appendices from one of which the above quotations are taken] are not necessarily the official recommendations of the Commission, such official recommendations being contained only in bills as submitted to the Legislature."
This is clear from its citation of McNally v Brown (5 Redf 372) and Matter of Yanover ( 16 Misc.2d 128).
There is, however, additional evidence, not referred to by the majority, which establishes with irrefutable clarity the authenticity of the photocopy of the will. The testimony of two of the subscribing witnesses establishes that Dr. Kleefeld and his wife both executed their wills at the same time and place (the dining room of the Kleefeld apartment). Present were the two Kleefelds, the two subscribing witnesses and Leonard Kommel, the attorney. Mrs. Kleefeld's will was executed first, the two witnesses then signed as witnesses to the will, as did Leonard Kommel, a copy was conformed by Kommel, the copy given to Mrs. Kleefeld and the original retained by Mr. Kommel. The same procedure was followed for the execution of Dr. Kleefeld's will, and the subscribing witness, Julius Bisci, testified that the copy given to Dr. Kleefeld was a photocopy in a blue back, which showed on its face page that it was the last will and testament, which consisted of a few pages, though he could not say how many, and the printing on the last page of which (conforming the copy) he had watched Mr. Kommel insert, and that the copy of Dr. Kleefeld's will produced in court was the copy Mr. Kommel gave to the doctor. Though he had not read or otherwise become acquainted with all the provisions of the will, Bisci's testimony together with that of Ms. Baris and the Surrogate's finding that the staples had not been removed from the copy presented in court was sufficient to authenticate the copy as a copy of the will Dr. Kleefeld had executed. The other subscribing witness who testified, Mr. Phillips, did not say in so many words, as did Bisci, that the copy in court was the copy given Dr. Kleefeld, but he confirmed that he had looked at the first and last pages and his testimony was otherwise essentially the same as Bisci's.
In evidence is a letter dated 20 days after the date of execution of the wills in which Kommel acknowledges receipt of a check and states that the wills were being kept in his office safe.
The will of Mrs. Kleefeld was admitted in evidence without objection. That will appears to the naked eye to be in the same type face as the doctor's will and like the doctor's will bears in the upper lefthand corner of the first page the legend "LK/nmb/12/22/70." It is, moreover, identical in its provisions with Dr. Kleefeld's will, except as it substituted his name for hers in its dispositive provisions and made resulting conforming changes, and except that in disposing of the estate should the other spouse not survive (or die in a common disaster) one of the 48 specific bequests was in the sum of $2,000 in Dr. Kleefeld's will but in the amount of only $1,000 in Mrs. Kleefeld's will. The date of execution borne by the two wills is the same, December 24, 1970. The names of the subscribing witnesses appear in the same order and are the same names and addresses that appear on the conformed copy of Dr. Kleefeld's will, but appear to be in manuscript writing whereas on the doctor's will they are printed. Moreover (as the Surrogate noted on the record when Mrs. Kleefeld's will was introduced), both wills consisted of nine typewritten pages. Mrs. Kleefeld died on February 1, 1971. Her will was not admitted to probate (because Dr. Kleefeld, as the sole beneficiary under it, noted that he was tenant by the entirety of the property that would have passed under it), but a copy of the will was filed as part of the petition to fix tax on her estate. The copy of her will admitted in this probate proceeding came from the Surrogate's Court file.
Many of which were to persons or charities in foreign countries.
The conformed copy of the doctor's will bears an ink change, with marginal notation, of the bequest to $1,000 but no evidence was presented as to when that change was made. As admitted by the Surrogate, that bequest remains at $2,000.
One has to bury one's head deep in the sand not to conclude that the will Dr. Kleefeld executed on December 24, 1970 was the original of the will the photocopy of which was produced in court, for the combination of Nadine Baris' identification of the copy as Dr. Kleefeld's will and recollection of its many bequests, some to people in foreign countries, Julius Bisci's testimony concerning the execution and conformance of copies of the two wills and his identification of the copy of Dr. Kleefeld's will, and the bequests set forth in Mrs. Kleefeld's reciprocal will, exactly conforming (with but one minor difference) to that of Dr. Kleefeld permits no other conclusion. Indeed, the probate of Dr. Kleefeld's December 24, 1970 will could be the product of fraud only if the doctor had executed a different later will which the perpetrator destroyed in order to obtain the benefit of a bequest in the earlier will, or if the will executed by the doctor on December 24, 1970 was in fact different from that executed by his wife and the perpetrator stood to recover under the copy, if probated, more than he or she would have under the will as executed and was wily enough to forge a copy which duplicated, reciprocally, Mrs. Kleefeld's will, and sufficiently ungreedy to be willing to share the estate with 47 other specific legatees and the four charities which received the residue, yet a sufficient blunderer in executing his plan to misstate the amount of one of the 48 legacies by $1,000 and then seek to correct the mistake in ink and by marginal notation instead of simply retyping the page he was forging. Objectants introduced testimony that Dr. Kleefeld had spoken of executing a later will, but neither court below credited it. Even less credit can be given to the forgery possibility, bearing in mind that the December 24, 1970 paper executed by the doctor remained in lawyer Kommel's safekeeping and, so far as appears, was lost in the several movements of the lawyer's files after Kommel died in April, 1972.
I thought that Matter of Snide ( 52 N.Y.2d 193, supra) signaled our move away from the feckless formalism to which the majority now once again returns. In that case, as in this, we dealt with a reciprocal will, there one prepared for the wife but mistakenly signed by the husband. We directed probate notwithstanding that to do so the two wills had to be read together. The conclusion there reached applies equally here, word for word: "Under such facts it would indeed be ironic — if not perverse — to state that because what has occurred is so obvious, and what was intended so clear, we must act to nullify rather than sustain this testamentary scheme. The instrument in question was undoubtedly genuine, and it was executed in the manner required by the statute. Under these circumstances it was properly admitted to probate" (52 N.Y.2d, at p 196).
The issue for determination is whether the copy presented bespeaks the testamentary plan of the testator, not whether under other circumstances there could have been fraud. To permit the frustration of Dr. Kleefeld's testamentary plan at the behest of three of his nieces, dissatisfied apparently with the $1,000 legacy left to each, at the expense of his wife's nephew, who, the Surrogate found, had been raised in Dr. Kleefeld's home and was treated as his son, and of the many other relatives of his wife, friends of both, and employees of the doctor's and charities named for specific bequests as well as the four charities that would receive the residuary (none of whom will receive any part of the estate if the will is not probated) is, indeed, to turn the meaning and purpose of the lost will statute on its head. The words of Surrogate WINGATE in Matter of Breckwoldt ( 170 Misc. 883, 888, supra) bear repeating here: "It is the conscience of the court which must be satisfied upon this point [whether the devolutionary plan in the copy propounded is in fact what the testator intended]. As the court reads them, the provisions of the statute in this connection provide merely a rule of caution against too ready a conviction on this issue, and inhibit an expression of such conviction merely upon the unsupported recollection of a single witness. This must be fortified either by corroborative testimony or by documentary demonstration of a satisfactory nature. Whether either will be sufficient for the purpose must, in the nature of things, be remitted to the decision of the trier of the facts." Here, the conscience of an experienced and conscientious Surrogate has been satisfied and the propriety of his satisfaction has been confirmed by the Appellate Division's review. More is not required by the statute.
I do not suggest that the nieces had anything to do with the disappearance of the original of Dr. Kleefeld's will. My point is that they receive a windfall, never intended by the testator, and that most of the others, whom or which he intended to benefit, will receive nothing.
I have not overlooked the fact that neither the Surrogate nor the Appellate Division commented upon the will of Mrs. Kleefeld and its relation to the question at issue, nor the prohibition against our making factual findings in the posture of this case. Presumably the failure of the courts below to comment with respect to Mrs. Kleefeld's will stemmed from the view, expressed in the first part of this dissent, that the findings the Surrogate made were sufficient under the statute without more. And although we cannot make new findings, we need not ignore evidence in the record which makes evident how egregiously wrong it would be to dismiss the petition for probate.
If I am correct as to the construction of SCPA 1407 (subd 3), as I believe the first part of this opinion demonstrates, the order of the Appellate Division should be affirmed. If I am not, there nevertheless should not be a dismissal. Rather the matter should be remitted to the Surrogate for a new trial or the making of new findings, as he deems appropriate, it being clear on consideration of all of the evidence that was presented before him that proponent made out a prima facie case. My own vote is, of course, to affirm.
Chief Judge COOKE and Judges GABRIELLI and JONES concur with Judge WACHTLER; Judge MEYER dissents and votes to affirm in a separate opinion in which Judge JASEN concurs; Judge FUCHSBERG taking no part.
Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and petition dismissed.