On October 27, 1916, the surrogate of the county of New York, where the decedent resided, admitted to probate, as her last will and testament, an instrument *Page 4 which was duly executed and published by the decedent in the year 1896 whereby she bequeathed and devised all her real and personal property to her husband, William D. May, and appointed him her sole executor. Letters testamentary were issued to him under which he acted until his death in 1920. In the record of the proceedings for the probate of this will there are two papers purporting to be waivers of citation executed and acknowledged by decedent's two daughters. In December, 1922, her daughter Florence M. Miller presented a petition for the probate of a paper signed by the decedent Joanna May and two witnesses in the year 1916 shortly before the death of the decedent, and on November 7, 1923, the surrogate made a decree admitting this paper to probate and revoking the letters testamentary issued upon the probate of the earlier will.
The instrument propounded as the later will was dictated to and written out by the decedent's daughter Florence M. Miller in the presence of her sister, yet both sisters stood by while an earlier instrument was propounded as the last will and testament of the decedent. One of the subscribing witnesses testified that the decedent declared that the instrument was her last will in the presence of both witnesses. The other witness testified that "the word will was never used that day. I was not asked to sign her will, but her last wishes and request, and in my mind I would call that a will." The testimony may be sufficient to sustain a finding that the paper was properly executed and published by the decedent (Matter of Will of Cottrell, 95 N.Y. 329; Matter ofWill of Bernsee, 141 N.Y. 389), but it does not dispose of the question whether in fact the instrument was a will or only the decedent's "last wishes and request."
The paper propounded is extremely informal. It contains no express testamentary declaration, no attestation clause, no appointment of executors. It begins with the words "Harley Merry House to go to my two daughters *Page 5 Florence and Blanche." It contains no words of gift, bequest or devise except in so far as a bequest or devise might be inferred from the words above quoted and from similar words such as "to my three grandchildren, $500 each, to be put in the savings bank until they become of age." Undoubtedly the decedent indicated by these words a desire that "Harley Merry House" should eventually become the property of her two daughters and that her three grandchildren should eventually receive $500 each, and there are similar indications of desire in regard to other portions of her property. The informality of the paper, and the looseness of its language, would be no bar to our giving to any directions contained therein testamentary effect if we can glean from its language an intent on the part of the decedent that the paper should have such effect. The courts must endeavor to find from the language used the actual intent of the decedent; if, from such language, it appears that the decedent intended to dispose of her property, or part of it, by means of the instrument signed by her, and to give that instrument the force of a will, it may be admitted as a will or as a codicil to her earlier will; if, on the other hand, it appears from the paper itself that the decedent intended that paper merely to express her wish or desire that part of her property should be eventually disposed of by her husband as therein suggested, it may be given no greater force than the decedent intended.
The will executed by decedent in 1896 gave to her husband all her real and personal property. Although the paper signed by the decedent twenty years thereafter has been admitted to probate as her last will and testament and the letters testamentary issued upon the probate of the earlier will have been revoked, it seems clear that the testatrix had no intent to revoke the earlier instrument. On the contrary, although the later paper does not expressly name the decedent's husband, or leave any property to him, at least half of the instrument *Page 6 consists of expressions of desire, evidently addressed to him in the second person, which certainly show that the decedent assumed that her husband would possess and dispose of all her property, at least in so far as she had not indicated a different intent as to part of it. She tells him, "At your death I desire you to leave our two homes at Amityville and 70th Street to our four children." And again, "If you sell the two homes I desire that you will not put all the money from them in the business so that in case of bad business you will be sure to have some ready money for your comfort and old age." This is not language which, though informal, yet shows an intent to devise for life; it is an expression of desire as to the ultimate disposition of property which the decedent recognized she had already devised to her husband. The same intent is shown by the words, "when you are through with all household effects, furniture, etc., or at your death, I wish them to go to our two daughters, Florence and Blanche." Perhaps it may not be entirely without significance that the paper contains also a request to her husband to live with one of her daughters which concededly does not concern the disposition of the decedent's estate.
Reading the paper in the light of all the circumstances, we conclude that it shows on its face a recognition that the decedent's previous will leaving all her property to her husband was still in full force and that it was intended merely as a careful memorandum addressed by decedent to her husband expressing her wishes and desires as to the ultimate disposition of her property but without derogation of his full property rights conferred by the earlier instrument. We need not consider under these circumstances the effect of the failure of the proponent and her sister to demand the production of the instrument and to offer it for probate until years had elapsed after the probate of the original will and after the sole legatee named therein had died leaving a will which in many respects carried out the wishes of the decedent. We *Page 7 need not speculate as to whether the parties did not themselves originally place upon the paper the same construction which we are placing upon it. The paper itself fails to show testamentary intent on the part of the decedent, and the order of the Appellate Division affirming the decree for its probate should be reversed, with costs to appellants, and the application for probate denied.
CARDOZO, POUND and McLAUGHLIN, JJ., concur; HISCOCK, Ch. J., concurs in result; CRANE and ANDREWS, JJ., dissent.
Order reversed.