Opinion
279 A.D. 826 109 N.Y.S.2d 257 In the Matter of the Probate of the Will of ELSA M. L. PEABODY, Deceased. LOUIS K. GREEN et al., Appellants; FRANCES GRAY, Respondent.
Supreme Court of New York, Third Department. January 9, 1952
Appeal by contestants from a decree of the Surrogate's Court of Ulster County, probating instruments as the last will and testament of deceased. The sole question raised is whether the two instruments admitted to probate were executed by decedent in the manner required by law. The uncontroverted evidence is: On August 30, 1950, decedent called at her attorney's office and read a document he had previously prepared pursuant to her directions as and for her last will and testament. After reading it she made known her desire for a slight change, viz., to substitute another as trustee of a fund for the care of her family burial plot. Thereupon her attorney prepared another instrument in the form of a codicil to effectuate the requested amendment. Immediately thereafter she executed the former and then the latter instrument and each, respectively, in full compliance with all the requirements set forth in the statute. (Decedent Estate Law, § 21.) It has long been established that when the issue raised is solely as to the manner of the execution of a will and the only inquiry is as to a compliance with the statutory requirements which fix an 'inflexible' and determinative rule, that in such case intention of the testator is irrelevant and that of the Legislature in the enactment of the rule prevails. ( Matter of O'Neil, 91 N.Y. 516, 520-521; Matter of Whitney, 153 N.Y. 259, 264; Matter of Andrews, 162 N.Y. 1, 5; Matter of Allen, 282 N.Y. 492, 496-497; Matter of Stever, 268 A.D. 559, 561.) Adherence to this rule precludes no due inquiry as to the genuineness of testamentary intention along the various lines not presented upon this appeal. As regards the sole matter of the required mode or manner of the execution of a will the mental reservations of the testator are unimportant. Decree unanimously affirmed, with costs to respondents payable out of the estate.
Present--Foster, P. J. Heffernan, Brewster, Bergan and Coon, JJ.