In re the Estate of Zaharis ( 1982 )

Weiss, J., dissents and votes to affirm in the following memorandum. Weiss, J. (dissenting).

I respectfully dissent. In my view, upon consideration of the unique circumstances of this case, the subject instrument has been executed so as to entitle it be considered in compliance with the requirements of EPTL 3-2.1. It is clear, as the majority notes, that the statutory requirements should not be “frittered away” by exception, but, by the same token, neither should this court raise form above substance in order to destroy a will (see Matter of Field, 204 NY 448, 457). In construing a document offered for probate, we look not to the “physical end”, but to its natural and logical end {id.; see, also, Ann., 44 ALR3d 701, 710). In this sense, it becomes crucial to recognize the peculiarities attendant the use here of a three-by-five inch file card as a testamentary document and the circumstances surrounding execution. Inspection of the subject document shows that the dispositive provisions substantially cover both sides, concluding, as the majority notes, three and one-half lines from the bottom of the card. Nonetheless, the space limitations, inherent in the use of the file card are obvious and in actuality only a limited space remained for the necessary signatures. The record shows that one Jean Theodoropoulos transcribed the document at decedent’s direction and that each attesting witness signed only after decedent had signed her own name, declared the document to be her last will, and requested witnesses’ signatures. Significantly, Fotista Halikias testified that decedent signed along the margin on the front side to “give us [the attesting witnesses] room to sign” on the back. Her testimony was uncontradicted and credited by the Surrogate who was clearly in the best position to make this assessment. The main concern is that in the view of decedent and her attesting witnesses, the limited space at the end of the dispositive language required one of them to utilize the margin for her signature. Consequently, decedent signed in what she apparently believed to be the only natural and logical space remaining. Though clearly not the physical end, in essence, the document was signed “at the end thereof” as mandated by the statute. I am not unmindful that decedent’s signature does not appear on the same side upon which the dispositive provisions end. In this regard, the Surrogate’s treatment of the file card as a “continuous writing” was appropriate since the words and meaning flow in a natural sequence from one side to the other. Viewed in this light, the fact that decedent’s signature appears on the front side margin and not the back becomes irrelevant. In instances where a witness’ signature appears in the margin due to lack of space, courts have not been reluctant to admit the will to probate (see, e.g., Matter of MacMonnies, 58 Misc 2d 836; Matter of Kobrinsky, 51 Misc 2d 222; Matter of Young, 36 Misc 2d 718). There is no reason why a different result should accrue when the marginal signature is that of the testatrix (see Matter of Buchanan, NYLJ, Dec. 13,1979, p 11, col 6). Nor is there any reason for the subscriptions of the testatrix and the witnesses to be contiguous (Matter of Young, 36 Misc 2d 718, 719, supra). Moreover, contrary to contestant’s argument and as the majority notes, the record fails in any manner to suggest fraud or undue influence. In conclusion, I find that the December 7,1975 instrument was executed to effect sufficient compliance with the statute. In reaching this determination, I do not dismiss the necessary formalities of will execution but, under the unique circumstances of this case, am constrained to conclude that the beneficial purpose of these rules should not be subverted by raising form above substance to deny probate. As Judge Vann aptly wrote in Matter of Field (204 NY 448, 455, supra): “The evil of fraudulent changes in wills is rare, while the evil of defeating wills altogether in the manner suggested is common. Hence, we think we have gone far enough in the direction of rigid construction and that the doctrine of certain authorities should not be extended, lest in the effort to prevent wrong we do more harm than good.” So it is here that strict construction of the rule, without consideration of the peculiarities attendant use of a file card as a testamentary document and the uncontradicted testimony of the attesting witnesses as to execution, would work an untoward result. The decree should be affirmed.