Opinion
May, 1913.
Jacob Newman, for proponent.
Kremer Leavitt, for contestants.
The will was written by testator himself on an ordinary will blank consisting of one sheet of paper, folded over at the middle to form four pages, so that, except for the fold at the top, the paper has the appearance of two sheets of legal cap paper fastened together at the top. The testator wrote several bequests in the part of the paper left blank for that purpose, filled in the name and address of the executor appointed, and, not having sufficient room to complete the will on the first page, he continued writing on the second page, which is on the reverse side of the first page. The will is continued on the inside of the paper from the second to the third page, and the writing ends near the top of the third page, where the instrument is signed by the testator. To read from the first to the second page one must first turn up the first page and then turn the paper half-way about or upside down, and to continue the reading from the second page to the third page with the whole paper unfolded it is necessary to again turn the whole paper end for end. The testator signed the paper where he stopped writing on the third page. He also signed on the first page at the place on the will blank where the signature to a will is ordinarily affixed, and he signed his name again at the end of the printed attestation clause on the first page.
The witnesses to the will signed the attestation clause on the first page and also signed their names opposite the other signature of the testator on the first page. It is contended that the will can be read "logically" by beginning at the preliminary printed clause, "In the name of God, Amen, I, Samuel Reisner," etc., then right along through the clauses written by testator himself in the blank spaces of the form, down to the printed words, "I hereby appoint," etc. Proponent would then have us skip to the inside pages and read along to where testator finished his writing and signed his name, which is on the third page. We are asked then to come back again to the first page, to the clause beginning with the printed words, "I hereby appoint," in which Louis M. Brown, No. 787 Eighth avenue, New York city, is appointed executor. With this order of reading, testator's signature and the signatures of the two witnesses would come next, and then would follow the printed attestation clause and the other signatures of testator and the two subscribing witnesses at the bottom of the first page.
Section 21, subdivision 4, Decedent Estate Law, provides: "There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator." Proponent's counsel contends that the end of the will is found on the first page by reading the will in the manner described above, and Matter of Field, 204 N.Y. 448, is urged as controlling authority for such an interpretation of the words "end of the will."
The facts of the Field Case are entirely different from the facts of the case before me, and although the Court of Appeals laid down a more liberal rule than the one that had prevailed up to that time, on the question of what is the "end" of a will, there is no way that I can see by which even the language of the opinion can be applied to the present case. As the two witnesses did not sign their names at the end of this will, probate must be refused. Matter of Hewitt, 91 N.Y. 261; Matter of Blair, 84 Hun, 581; affd., 152 N.Y. 645.
The executor named in the paper propounded as a will may tax his costs and the same will be allowed.
Decreed accordingly.