In re the Probate of the Codicil to the Will of Seymour , 85 N.Y.S.2d 314 ( 1948 )

The evidence supports the contention of appellant that the name of the beneficiary inserted in the direction to the executors of November 8, 1946, was inserted by the testator prior to the execution of the document by the testator and the witnessing of the execution by the subscribing witnesses. The testator intended, and the witnesses understood, that the direction was to have testamentary effect. We find as a fact that the name of the beneficiary was inserted before execution and that the document was witnessed, published and is valid as a testamentary instrument. The findings of the Surrogate to the contrary are reversed and the decree modified so as to admit the document to probate, with costs to the appellant payable out of the estate. Settle order on notice. Present — Peck, P. J., Glennon, Cohn, Van Voorhis and Shientag, JJ. [191 Misc. 954.]