Citation Numbers: 128 Misc. 662
Judges: Fraser
Filed Date: 1/18/1927
Status: Precedential
Modified Date: 2/5/2022
Georgia Bromley, the widow, and Dorothy Bromley, the daughter of decedent and his only next of kin and heir at law, are the petitioners in this matter. They were severally duly cited on the probate of the will but neither of them appeared in the probate matter, but they were subsequently moved to institute this proceeding, as appears by the petition herein, in consequence of the opinion of Albert H. Hamilton, who has testified herein that he is a handwriting expert of forty-one years’ experience, that the document admitted to probate as the will of decedent “ is not an original, genuine document, but is a manufactured and doctored manuscript that has been created and offered as a genuine will.”
The will gives the widow $2,000 in lieu of dower and statutory rights, and gives the balance of the estate to trustees for the benefit of the daughter until she reaches twenty-one years of age, she having been about fifteen years old at the date of the will, July 20, 1920, and twenty years of age at the time of decease of testator. The will provides that the balance of the estate (all
The will shows on its face some alterations in connection with the change of name of one of the executors, but there is no circumstance casting suspicion on these alterations and nothing in connection therewith that required investigation by the court before admitting the will to probate.
Where an interlineation or erasure is unexplained, there being no circumstance to cast suspicion upon it, it would not be proper for the court to hold that the alteration was made after execution. (Matter of Voorhees, 6 Dem. 162; Matter of Wood, 144 App. Div. 259.)
Where an interlineation, fair upon the face of the instrument, is entirely unexplained, there is no presumption in the absence of any suspicious circumstances, that it was fraudulently made after execution, and the burden of showing it to be fraudulent is on the contestant. (Crossman v. Crossman, 95 N. Y. 145.)
The execution of the will is attested by three subscribing witnesses at the end .of an ordinary attestation clause. Two of these witnesses, Mr. McCormick, the attorney who prepared the will and is one of the persons named therein as an executor and trustee, and the stenographer who transcribed or typed it, severally testified on the probate thereof that the due formalities attending the execution of a will were observed in the execution of this will, and that at the time of its execution the testator was of sound mind and free from restraint; and in this proceeding to reopen the probate the witness who was not examined on the probate of the will was produced and examined and testified that the due and legal formalities were observed in its execution; and each of these three witnesses testified heréin that the testator subscribed the will in their presence at the same time that they severally signed it as witnesses; and the said attorney and stenographer each testified herein that the will at the time of its execution was in the same condition in every respect as at the time of its probate and at the time of giving their testimony herein.
Albert H. Hamilton, above mentioned, testified herein that he
All the facts and circumstances weigh heavily against the opinion conclusions of the petitioners’ expert Hamilton. On cross-examination many ink writings of known age taken from the records of the Surrogate’s Court were shown him and in no instance would he venture an opinion-as to their age. Obviously such testimony is of no value. If the age of ink could be told in one instance, it could be told in the other. Hamilton’s failure to sustain himself on such tests on cross-examination leaves the suspicion that his so-called opinion is but a speculative theory and not based upon any sound test of proven facts, and without Hamilton’s testimony the petitioners would have no case. His failure to substantiate his theory discredits the petitioners’ whole case.
The testimony of the witness Hamilton is further discredited by the fact that four witnesses were produced herein by the executor, each of whom testified that Hamilton's reputation as to truth and veracity was bad, and each witness testified that he would not believe him under oath, and no witness was produced to sustain his reputation.
Hiram J. Stevens, the present treasurer of Washington county, and who has held this position for many years, testified herein that the testator told him that Mr. McCormick was to be the executor of his estate; and the witness Frank Peets testified that the testator told him that Mr. McCormick was to have charge of the settlement of his estate after his decease.
The witness Hamilton in his testimony stressed the fact that the will was not all written at the same time or on paper of the same size, or on the same typewriter; but the cause of this as appears by the testimony of Mr. McCormick and the stenographer who typed the will, was that the will as at first prepared lay for
There is an utter failure of proof herein to justify the opening of the decree admitting the will to probate. Against the opinion evidence of the discredited witness Hamilton stands the opinion evidence of the handwriting expert Osborn who is in no way discredited, and the evidence of the three subscribing witnesses to the will, each of whom testifies to facts, and “ facts are stubborn things ” and of much greater weight than opinion evidence under any condition; and the further fact that the testator stated as above set forth that Mr. McCormick was to be the executor and would have charge of the settlement of his estate.
I direct that a decree be entered herein dismissing the petition, with costs to the executor payable out of the estate.