In re Proving the Last Will & Testament of Gibson

Smith, P. J.:

Courts are not looking for pretexts to destroy wills. A disposition of property by a testator with a disposing mind is presumed to be just and equitable. Such disposition will be upheld by the courts unless it is in contravention of some statute. The Statute of Wills* is a wise statute, and all instruments drawn as wills will be tested by its provisions, and condemned where they are obnoxious,. either to its letter or its spirit. In the will in question the 8th paragraph is concluded by a marginal insertion. • There is neither a statute nor a decision of a court which holds invalid a will simply because an insertion has been put into the margin upon the same page. The Statute of Wills has never attempted to condemn or prevent interlineations and insertions in the will itself. It has only condemned those additions which are inserted after the signature in wills, where such insertions have been attempted. If this marginal insertion, therefore, had all been above the line of the signature,' it cannot be doubted that this paper would have been without the condemnation of the statute. Because part of a sentence — a single phrase of the marginal insertion — comes below the line of the signature, the attempted disposition of the property of the testatrix has been nullified; this, too, where the clause which appears below the line of the signature is a wholly immaterial clause. It adds nothing to the will. If this will then be subject to the condemnation' of the statute, as not signed at the end thereof, it is not because that part below the line of the signature was or may have been inserted in fraud; it is not because any mischief was or may have been caused to prevent which the statute was enacted. In other words, the form of the proposed will is in no way obnoxious to the spirit Of the statute, nor to its letter, except by a most technical construction. Such a technical construction of the statute, which results fin thwarting a presumably just distribution of property, should not in my judgment be upheld by the courts.

The decisions of the courts in this and. other jurisdictions, holding that a material portion of a will following the testator’s subscription renders void even that portion of the will prior to such subscription, are based upon the principle that the testator presumably makes his will as a completed whole. It is, therefore, impossible to assume that he would wish only a part of it to stand, and the entire will is accordingly refused probate as not complying with the statute. (Sisters of Charity v. Kelly, 67 N. Y. 409, 416; Matter of O'Neil, 91 id. 516, 524; Glancy v. Glancy, 17 Ohio St. 134.) It will be noted, however, that in each case where' this doctrine has been applied, the latter portion of the will covered an important or material provision, usually expressly so described by the courts, and I find no case holding that an unimportant or immaterial subsequent provision has any such effect. Obviously, the principle mentioned will not then apply, for it rests on the assumption that a testator would not wish his will to stand with any material part stricken out. But if it be admitted that the part objected to, or to be stricken ■ out, is actually immaterial, there is then no reason assignable why the testator, if living, could object to its exclusion.

The case of Baker v. Baker (51 Ohio St. 217) was under a statute requiring subscription “at the end” of the will. The testator appointed his. sister-in-law as executrix, and then after his signature added the clause: “ My sister-in-law is not required to .give' bond when probated.” This clause, if valid, would have been, under the Ohio statutes, subject to the discretion of the court admitting the will to probate, which might have required a bond or not, as might seem expedient, or might have required a bond at any time. subsequently.. (See p. 224.) Although the Ohio rule is similar to the' New York rule as regards material provisions below the signature (see Glancy v. Glancy, supra), and although it was in this case clearly recognized that dispositive parts of the will should be above the signature, the court held that other parts below the signature might be excluded from probate and yet not invalidate the entire instrument. But the part written below must not be “ of a dispositive nature, nor contain anything likely to affect the construction oE the will or the rights of the beneficiaries.” (Pp. 222, 223.) The clause in question was accordingly rejected as unessential and the balance of the will admitted to probate. To the same effect is the dictum of the court in • the late case of Irwvn v. Jacques (71 Ohio St. 395), where an important or dispositive provision was carried along a margin and below the signature. In holding the will not signed “ at the end thereof,” the court said : “ If the language so written has no legal signification and has no effect on the other provisions of the will, it might be treated as mere unimportant surplusage as in Baker v. Baker et all In the recent case of Ward v. Putmam (119 Ky. 889), under similar statutes,»it was held that a subsequent clause appointing an executor did not invalidate a prior and dispositive part of the will, as the addition did not in any wise “ affect the disposition, of the estate contemplated by the testator.” The court said : “ Where the signature is placed at the close of the substantial provisions of the document, and the writing as signed is sufficient to effectuate the intention of the party signing it, the statute is substantially complied with, although there may be words following the signature which are unessential to the validity of the instrument.” It will be seen that the opinion, in this case is based on the general principle that non-substantial or unessential portions of a will may be excluded, although it declines to follow the decisions of this and some other States which hold in effect that a clause appointing an executor is a substantial part of a will. The rule as laid down by Page on Wills (1901) at page 206, is as follows : “ If the clause added below the signature neither affects the disposition of the estate nor appoints executor or guardian, the authorities are unanimous that such clause does not invalidate the will, and that within the meaning of the statute the signature is at the end of the will.”

The statutes requiring the testator to subscribe “ at the end ” of the will are obviously intended to prevent fraud in the way of unauthorized additions, and so are to be “ strictly construed.” (Matter of Andrews, 162 N. Y. 1, 11.) (See, also, Matter of O’Neil, supra ; Younger v. Duffie, 94 N. Y. 535, 539; Glancy v. Glancy, supra.) But in the case of unimportant matter following the signature I think, to úse the language of Judge Earl in Younger v. Duffie, that “ the case is not within the mischief intended to be guarded against by the statute.” No wrong can possibly arise from the addition of admittedly unimportant provisions after the signature and I accordingly see no reason why súch a provision, as in the will at bar, may not be stricken out and the portion of the will above the signature — the only material and essential part of the instrument — admitted to probate.

The decree appealed from should be reversed, without costs,, and matter remitted to surrogate to proceed in accordance with this opinion.

All concurred; Kellogg, J., in memorandum.

* See 3 R. S. 63, § 40.—[Rep.