Opinion
January 30, 1956
Reginald J. Snyder for Douglass W. Marshall, proponent.
The court is satisfied on all the proof that the decedent executed the propounded instrument in conformity with the provisions of section 21 of the Decedent Estate Law and that at its execution she was of sound mind, free from restraint and fully competent to make a will.
An irregularity appears on the first page of the instrument in that paragraph "First" is followed by paragraph "Third" with the page cut across horizontally between the two paragraphs and held together by transparent adhesive tape, thereby rendering this page about an inch shorter than the second page of the instrument. The proponent has filed a conformed carbon copy of the instrument obtained from his attorney's files and the attorney-draftsman testified that it was an exact copy of the original, as executed. The first page of this copy contains paragraph "Second" in which the proponent is given a legacy of $1,000. It is obvious that paragraph "Second" was excised from the propounded instrument.
The court is satisfied on all the evidence that at the time the propounded instrument was executed it contained said paragraph "Second" and was thereafter retained by decedent until her death. The partial revocation attempted by the excision of said paragraph is ineffectual since the formalities required by section 34 of the Decedent Estate Law were not followed. The will must therefore stand as originally executed. ( Matter of Park, 123 N.Y.S.2d 698 and cases cited; Matter of Lyon, 75 N.Y.S.2d 237; Matter of Traversi, 189 Misc. 251; Matter of Smith, 161 Misc. 194; Matter of Bescher, 132 Misc. 625.)
The propounded instrument is entitled to probate in its original form as the will of the decedent. The decree should incorporate the instrument as thus admitted. Submit decree accordingly.