Opinion
July, 1916.
Robert M. Boyd, Jr., for proponent.
Frank H. Reuman, for contestant.
W.C. Hayes (Clinton T. Roe, of counsel), for John J. Ross.
The will offered for probate is contested. The paper propounded is a holograph. It contains on its face an erasure. Ink lines have been made over what is asserted to be the figures "13" in the orignal draft. The word "three" is written immediately above the erasure so that the paper now reads: * * * "To my sister Emiline Bache three thousand and my diamond earrings."
It appears that the will of testatrix was made on January 30, 1914. Immediately after execution the testatrix took the paper away with her, and it was found in her safe deposit box on December 15, 1915, when a search was made for it, pursuant to an order of this court. Testatrix died on December 5, 1915.
The objections to the paper propounded were filed on behalf of Emiline Bache, a legateee and one of the next of kin. In substance, the objections allege that the alteration on the first page of the will consists of the cancellation of the figures "13" before the word "thousand," and the interlineation of the word "three." It is asserted that the alteration was made subsequent to execution. The objectant prays that the will of testatrix as asserted to have been originally executed may be admitted to probate.
The declarations of testatrix made to the contestant should, I think, be disregarded. They were made after the execution of the will. White v. Hicks, 33 N.Y. 383. The declarations made by the testatrix to George F. Bache were not proved to have been made at any particular time. In fact, their indefiniteness alone would preclude any importance being attached to the declarations of testatrix testified to by this witness. Declarations that the alterations were made before execution are received in England, not as evidence of the fact stated, but as evidence of continuous intent. Phipson Ev. 308, and cases cited.
Much importance is attached by the contestant to the fact that for some time before her death the executor named in the will had possession of the key of the safe deposit box of testatrix wherein the will was found. On the trial of this cause, however, no proof was offered to show that Mr. Kirby, a very respectable man, had ever visited the box. On the contrary he was uncontradicted in his testimony that before the actual hearing in court he had never examined the will and never had the propounded paper in his physical possession.
The will was witnessed by two notaries public. One of the attesting witnesses testified that he had the will in his hands between five and ten minutes before it was executed, and that he glanced over it. He could not recollect whether or not the change in the text, which is the basis of the contest, had been made. The other attesting witness did not have occasion or opportunity to inspect the text of the will. In short, there is no affirmative proof of a convincing character that the alteration in the will was made at any particular time. The testimony of the handwriting expert, called on behalf of contestant, does not alter my opinion, made after careful consideration of the matter, that the alteration of the will was made by the testatrix herself and is in her handwriting.
In the absence of proof it is the law of this state that where an interlineation, fair upon the face of an instrument, is entirely unexplained, there is no presumption that it was fraudulently made after the execution of the instrument. Crossman v. Crossman, 95 N.Y. 145; Matter of Conway, 124 id. 466.
At common law unexplained alterations in a will were presumed to have been made before execution. Matter of Easton, 84 Misc. Rep. 1. That this rule has been changed I have not concluded. It is a great question. Consequently I prefer to base my decision on the ground that the proponent has met the requirements of law in his proofs of the paper propounded. The evidence offered by the contestant did not require a higher order of proof on the part of proponent. The onus was on the contestant, claiming an advantage from the alteration, to adduce some evidence by which it may be inferred that the alteration was not made before execution. Williams v. Ashton, 1 J. H. 115, 118.
Decreed accordingly.