Opinion
Argued April 13, 1953
Decided June 4, 1953
Appeal from the Supreme Court, Appellate Division, First Department, FRANKENTHALER, S.
Bertram H. Siegeltuch and Walter M. Weisberg for Phyllis Altman and another, appellants.
Abraham Zemlock, Albert J. Zemlock and Samuel Gewirtz for Esther Feinberg and others, appellants. Homer I. Harris and Samuel L. Zuckerman for Isidore Pech, respondent. Edward B. Schulkind and Irving M. Maron for Helen Marcin, respondent.
The courts below have disagreed on whether decedent, Robert Pulvermacher, published his holographic will in compliance with the statutory mandate that a testator "declare the instrument * * * subscribed, to be his last will and testament" at the time that he signs or acknowledges it (Decedent Estate Law, § 21, subd. 3).
In January of 1949, Pulvermacher, while in the safe-deposit vault of his bank, obtained a piece of paper from one of the guards. Soon thereafter, he emerged from a booth near the vault and requested the guard and another vault attendant to "witness my signature." Although familiar with his signature, the guard, as was his wont in the case of all papers, asked him to sign again, and the two witnesses then signed to the right of his second signature.
Only those witnesses and Pulvermacher were present, and both employees emphatically testified, not only that the latter did not say that the paper was a will, but that they did not know that they were witnessing a testamentary disposition. According to one of them, all that Pulvermacher told them was, "I am going away on a trip. I have some instructions that I want carried out if anything happens"; and the other witness recalled that, after mentioning a "trip", Pulvermacher merely stated that there was "something I want to take care of in case something happens to me", and that "with all the accidents which you have today you never know what will happen." At the time of signing, the paper was folded and held in such a way that, at most, only the bottom quarter was visible. Both witnesses insisted that they read no part of it, though, even if they had, they could not have seen any attestation clause — for there was none. The words exposed were these: "The Business of L Pulvermacher Bros has to be continued is wish of deceased otherwise in the event they cannot get along together to dissolve the Business divide Robert Pulvermacher 308 E 79th St Jan 14 — 1949".
Some three years later, Pulvermacher died. We may assume that he intended the writing as his will, but our statute requires more. It requires definite formalities, and one of them is publication (Decedent Estate Law, § 21, subd. 3). Publication, in turn, demands, not only that the testator have knowledge of the character of the instrument, but, equally important, that he share that knowledge with his witnesses. While "no particular form of words" is necessary, the courts have held the minimum statutory prescription to be some kind of communication that the instrument, which they are being asked to sign, is testamentary in character. (See, e.g., Matter of Turell, 166 N.Y. 330, 337; see, also, Matter of Moore, 109 App. Div. 762, 765, affd. 187 N.Y. 573; Lewis v. Lewis, 11 N.Y. 220, 224-225; Van Hooser v. Van Hooser, 1 Redf. 365, 373; Darnell v. Buzby, 50 N.J. Eq. 725, 730-732.) "It must appear that, as between the testator and the witnesses, there was some meeting of the minds upon the understanding that the instrument was the testator's will". ( Matter of Turell, supra, 166 N.Y. 330, 337.) And that understanding must be derived, one court has written, " from some unequivocal act or saying of the testator". ( Van Hooser v. Van Hooser, supra, 1 Redf. 365, 373; italics in original.)
The reason for requiring publication is twofold: first, to furnish proof that the testator is under no misapprehension, whether by malicious contrivance or otherwise, as to the nature or identity of the instrument, and second, to impress upon the witnesses the fact that, since the document is a will, they are expected "to remember what occurred at its execution and be ready to vouch for its validity in court." ( Matter of Moore, supra, 109 App. Div. 762, 765, affd. 187 N.Y. 573; see, also, 1 Davids on New York Law of Wills [1923], § 307, p. 517.)
Because the possibility of misapprehension on the part of the testator is greatly reduced where a holographic will is involved, we have demanded "less strictness in the proof of a compliance with statutory formalities." ( Matter of Turell, supra, 166 N.Y. 330, 337.) However, while proof of publication "may be relaxed somewhat", compliance there must still be. ( Matter of Moore, supra, 109 App. Div. 762, 765, affd. 187 N.Y. 573; see, also, Matter of Hunt, 110 N.Y. 278, 281; Matter of Beckett, 103 N.Y. 167, 174.) A holographic will, this court has remarked, "must be executed with the same formalities as any other. Such is the command of the Legislature. To admit to probate such an instrument * * * [without proof of the formalities] opens the door to the nullification of statutory provision and probably in some cases to fraud." ( Matter of Allen, 282 N.Y. 492, 497.)
We find no warrant to ignore that legislative command in the fact that this state at other times did not — and that many other jurisdictions do not today — number publication as one of the solemnities prerequisite to the due execution of a will. (See, e.g., Remsen v. Brinckerhoff, 26 Wend. 325, 330-331, 337; 1 Roberts on Wills and Codicils [1st Amer. ed., 1823], pp. 105-108; 1 Davids, op. cit., § 306, pp. 514-515; 1 Page on Wills [3d ed., 1941], § 379, pp. 687-688.) The legislature, cognizant of our unbroken line of decisions requiring compliance with each of the statutory formalities even in the case of holographic wills, has continued its requirements unchanged and unrelaxed. (Compare 2 Rev. Stat. of N.Y. [as published under direction of Revisers, 1829], part II, ch. VI, tit. I, § 40, subd. 3, p. 63, with Decedent Estate Law, § 21, subd. 3; see 2 Rev. Stat. of N.Y. [as prepared by Commissioners, 1875], note to proposed § 7, amdg. § 40 of Rev. Stat., p. 1613; cf. Decedent Estate Law, § 16.)
In the case before us, the testimony, clear and uncontradicted, reveals that the witnesses were not informed, and, indeed, did not believe, that the paper was a will. Pulvermacher's remarks that he was going on a "trip" and that he was leaving "instructions" which he wanted carried out in case "anything happens," were at best equivocal. They "did not necessarily inform the witnesses that it was a will by excluding every other instrument from the mind." ( Lewis v. Lewis, supra, 11 N.Y. 220, 227.) The witnesses could just as readily have inferred that Pulvermacher was signing a power of attorney or an assignment or that he was providing for an inter vivos gift. And the reference to "accident", to anything that might happen, might just as well have pertained to nonfatal accidents or to mere delay in returning as to death. (Cf., e.g., Matter of Harris, 1 Tuck. 293, 298.)
Neither the relationship of the bank attendants to Pulvermacher nor the surrounding circumstances were sufficient to bring home to those witnesses that the writing was a will. (Cf. Matter of Beckett, supra, 103 N.Y. 167, 174-176.) The fact that a portion was visible does not indicate that Pulvermacher intended his witnesses to read it and realize its testamentary character. Indeed, the paper was folded and held so as to expose only a small part of the writing. In the light of this effort to conceal and secrete the paper's contents, as well as the relationship of the parties, it might well have been presumptuous of them to have read it. If any inference is to be drawn from the way in which the document was presented and from the lack of an attestation clause, it was that Pulvermacher actually sought to keep its nature from his witnesses. There is no need to find motive for such concealment; testators are, it has been said, "prone to desire to enshroud their testamentary acts in devious ways." (2 Jessup-Redfield, Surrogates' Law and Practice [Rev. ed., 1947], § 682, p. 48.)
Unable to contradict the testimony of the two witnesses, proponents seek to controvert it by suggesting that they lied. Those witnesses deny that they knew this was a will, the argument goes, in order to avoid the disfavor of their employer, whose rules prohibited two vault attendants from witnessing the same will. Even were we willing to accept this reasoning — and we are not — proponents have offered no evidence that the will was published. An attack on the credibility of the only witnesses in the case cannot fill the gap in their proof (see Matter of Moore, supra, 109 App. Div. 762, 768-769, affd. 187 N.Y. 573; Matter of Dale, 56 Hun 169, 174-175, affd. 134 N.Y. 614; Woolley v. Woolley, 95 N.Y. 231, 236), a gap which, according to the legislature's mandate, is fatal to probate. If the result appears to be harsh in this or that case, we must bear in mind that such consequence is compelled by legislative pronouncement, a rule built on what undoubtedly impressed our lawmakers as sound policy. (See Matter of Andrews, 162 N.Y. 1, 5; Lewis v. Lewis, supra, 11 N.Y. 220, 227-228.)
The decree entered pursuant to the order of the Appellate Division should be reversed and the original decree of the Surrogate's Court affirmed, with costs to appellants in this court and in the Appellate Division, payable out of the estate.
LEWIS, Ch. J., CONWAY, DESMOND and DYE, JJ., concur with FULD, J.; FROESSEL, J., dissents and votes to affirm on the prevailing opinion of the Appellate Division.
Ordered accordingly. [See 305 N.Y. 923.]