Burhans v. Haswell

By the Court,

Miller, J.

It is too plain to require argument to demonstrate that the paper which was claimed to he a codicil to the last will and testament of Henry Burhans deceased, was not a legal and valid instrument, executed in proper form, so as to constitute it a portion of the testamentary disposition of the property of the testator. It is true that this paper was presented to the surrogate with the will; evidence was introduced in regard to it, and it was recorded by the surrogate in connection with the will of the decedent. All these formalities, however, which are not recognized in law as applicable to such a paper, will not make a valid codicil of that which the law pronounces to be informal and insufficient for such a purpose. The law expressly provides what shall constitute the execution of a will or codicil; and it is not claimed that the paper in question was executed in due legal form. Nor does the fact that the surrogate allowed proof to be taken in regard to it and recorded it, add in any way to its force and validity. I do not understand that it was formally admitted to probate as a codicil; and if it was, in my judgment it is so strikingly defective and informal in all the essential particulars which constitute a legal testamentary disposition of a testator, that even that fact would not add to its legality. It is sufficient that the surrogate had no authority to act upon such a case, and his action being entirely without jurisdiction, it must be considered as ineffective and void.

If the paper in question can not be considered as valid and legal and binding of itself, in consequence of the objections which are manifest to it as a codicil to a last will and testament, then another question arises, and that is, whether the persons interested in the estate of the deceased, especially those named in it, have not adopted and acted upon it as a valid instrument, so as to make it obligatory upon them. It is urged that the heirs of Henry Burhans, junior, having called the executors to an account, and that account having been rendered upon the basis of the alleged codicil, and they having received money under its provisions and by color of the same as a valid instrument, they are estopped from questioning its validity, or avoiding its effect as a part of the will of the testator. I am inclined to the opinion that there may be some force in this suggestion, and I have some doubt whether the children of Henry Burhans, jr. having claimed and obtained the proceeds of the §3000 named in the alleged codicil, by virtue of it, are now in a position to repudiate it altogether. It is quite possible that to some extent, at least, they are barred by it, and the facts connected with it as presented by the proof before the surrogate prior to its being recorded.

Admitting that it is to be considered as a valid paper in the disposition of the testator’s estate, the question then arises, what construction is to be placed upon it ? Did the testator intend thereby to modify or change his original will any further than was required in consequence of the sale made by him of the Wederwax farm, and merely to make a provision for his son Henry and his children, in place of the devise of that farm which he had previously made for their benefit; or did he mean that this provision should be in lieu of all specific devises and bequests to them contained in the original will.

In interpreting the paper which is claimed to be a codicil we should not be confined to the paper itself, the same as if it had been actually executed. Alone, and of itself, without the proof connected with and explaining the circumstances under which it was drawn, it would have been unavailing for any purpose, and so far as it is binding upon the children of Henry, it must be taken and considered in connection with the evidence introduced before the surrogate to support and sustain it. It is only that evidence which makes it obligatory in any sense. It was not executed by the testator. It was not formally declared to be a codicil to his will. It had no subscribing witnesses. It must therefore stand or fall with the testimony which was given to establish it. And without this it amounts to nothing. According to the evidence of Mr. Ostrander, who 'made the memorandum, the testator called upon him without having the will in his possession, and stated to him that he wished to have a codicil drawn to be annexed to the will, to provide for the case of selling the Wederwax farm. The witness took down the words employed by the testator at the time, and as correct references could not be made to the will, it not being there, the testator promised to bring it at some future time, which he did do, leaving it at the witness’ office during his absence. In the light of these facts, it is very apparent that the testator merely intended to make a provision for his son Henry and his children in reference to the Wederwax farm, which he had sold and disposed of, by a‘ pecuniary bequest, and nothing more, without interfering with the remaining portions of his will. If he had desired to cut off his son and his son’s children, in regard to the otlfer provisions of the will, he should, and I think he would, have so expressed himself at the time. There is no reason to suppose, from any of the surrounding circumstances of the case, that the testator intended to make any distinction between his heirs as to that portion of his estate which he had devised to his son David during his life, upon the decease of David, or that he desired to dispose of it differently from- what was provided by the original will. In fact, there was no good reason existing at that time why he should do so. From any thing that appears, the same friendly feelings existed between the testator and his son Henry at the time he gave directions for a change in his will which had previously been maintained, and there is no proof that the son had done any thing to alienate the affections of his father, although it is urged that Henry’s expenses had borne heavily upon the testator, and his habits of intemperance, which had long existed, had increased, yet if such was the fact there is nothing in the proof to show that the testator for a moment took these alleged faults into consideration. Ho word escaped his lips which denoted in any way that he contemplated a change in his will in consequence of the son’s improvidence. If such had been the case, he doubtless would have indicated it, when he gave directions as to the codicil. Then was the time to speak of it; and from the fact that he never said any thing upon that subject, at that time, or at any other time, the inference is irresistible and conclusive that he still clung to him with all the tenacity of an affectionate regard, which he had manifested by the bountiful provision which he had made for him and his children in the original will; and that he was still disposed to extend towards him that exact justice which he had meted out to all his children.

It was the sale of the Wederwax farm, and nothing else, which induced the testator to make the codicil so that his son would be provided for as he had first intended. And I think that the declaration and statement made by him at the time, must be considered, to a great extent, as controlling, and it evinces, beyond any question, that his intention was simply to provide a substitute or the equivalent for the farm devised to Henry and his children which had been sold by him, leaving his will otherwise in full force and effect.

In adopting this construction it mayalso be observed, that if the testator intended to cut off his son Henry from any further participation in his estate than what is provided for in the statement drawn by'Mr. Ostrander, then he died intestate in reference to one third of the proceeds of the Hisketaw farm after the decease of his son David. The original will and the other facts of the case are in conflict with any such hypothesis or presumption.

The fact that in the provision which the testator made for the children of Henry, by the original will, the sons and daughters were made equal, and that by the alleged codicil the sons are to receive more than the daughters, does not in my judgment show that he intended to revoke all the provisions of the original will. It must not be forgotten that the statement tfiade by the testator was but a memorandum taken down by bis attorney, without having the will before them at the time, and subject to revision upon its production. Like all such directions preliminary to the drawing and execution of the last will and testament or a codicil, it would be likely to be informal and imperfect, until put in the proper shape, which tvas intended to be done, but prevented by the unexpected decease of the testator.

[Albany General Term, December, 5, 1864.

It is also insisted that the words “legacy and devise to the children of my son Henry,” as used, must be taken in a collective sense, and so as to embrace all the provisions of the will made in their behalf. As I have already expressed my opinion substantially, I do not think that a strict construction should be put upon the paper in question, in the same manner as if it was a codicil duly executed according to law; but it must be interpreted in the light of the evidence relating to, and the surrounding circumstances connected with, its origin and existence. They show pretty conclusively that the testator intended to provide merely for the change he had made by a disposal of the Wederwax farm, and therefore he could not have designed to include, by the terms employed, the devise of the ifisketaw farm as well as the Wederwax farm. Even if a strict construction was adopted, it may be observed that the expression used was not applicable, as no legacy or devise was made to either of the children. They only had a residuary interest in a fund which was provided for, and it is exceedingly doubtful whether the terms employed can be said to include all the provisions of the will.

The examination I have given to the case brings me to the conclusion that the surrogate erred, and the decree should be modified so that the children and grandchildren of Henry Burhans, jr. deceased, shall be entitled to one third of the fund accounted for. Ho costs of the appeal should be allowed to either party.

Peckham, Miller and Ingalls, Justices.]