Opinion
May 14, 1981
Appeal from the Surrogate's Court of Hamilton County, GEORGE W. MARTHEN, S.
David W. Johnson for appellant.
Edward A. Cunningham (Samuel Lawrence Brennglass of counsel), for respondent.
When this appeal was first before us, the decree of the Surrogate's Court was reversed, on the law, on the ground that the court improperly admitted to probate purported wills of a husband and wife, identical but for the names of the spouses, each spouse having mistakenly executed the will drawn for the other ( 74 A.D.2d 930). The Court of Appeals, rejecting our analysis of a long line of New York cases, reversed and remitted the case to us for a review of the facts (Matter of Snide, 52 N.Y.2d 193).
There is no dispute as to the salient facts which were found by the Surrogate to be as follows ( 96 Misc.2d 513, 513-514): "[T]he decedent, together with his wife, consulted an attorney with respect to drawing of a will for each of them. After discussing the details of the testamentary dispositions desired by each and determining that the intention of each was to leave the entire estate to whichever should survive and, in the event that they should die together or that the survivor should die without making a new will, the entire estate should pass to their children, and further, that each should be the executor of the will of the other, the two wills were prepared by the attorney. Subsequently the attorney, and the decedent and his wife attended at the home of those who signed the will as witnesses. While gathered around the table in such home with all of those just mentioned being present, the decedent declared that the instrument he was about to sign was his last will and testament and asked the persons present as witnesses to witness his execution of same. The attorney then removed an instrument from a will envelope bearing the name `Harvey Snide' and, after turning up the first page of the will to expose the line upon which the decedent was to affix his signature, directed the decedent's attention to the proper place for execution and the decedent affixed his signature thereto. Following this the witnesses affixed their signatures, at the testator's request, in the appropriate places beneath the attestation clause. After this was completed, the identical procedure occurred with respect to the instrument signed by the decedent's wife. Through inadvertence, and by reason of the failure of the attorney/scrivener to examine the instrument removed from the envelope, the decedent affixed his signature to the instrument which had been prepared for execution by his wife and his wife, for the same reason, affixed her signature to the instrument which had been prepared for execution by the decedent. Except for the names of decedent and his wife, the instruments are identical."
In accord with the opinion of the Court of Appeals (Matter of Snide, 52 N.Y.2d 193, supra), and upon these facts, we now affirm the decree of the Surrogate's Court.
The decree should be affirmed, without costs.
SWEENEY, J.P., MAIN, CASEY, MIKOLL and HERLIHY, JJ., concur.
Decree affirmed, without costs.