Misc.] Surrogate's Court, New York County, December, 1914.

An application by executors and trustees asking for the construction of a clause of the will of their testator wherein they were empowered to pay the necessary expenses in keeping certain real estate, devised to them in trust, in first-class condition, and whether said clause authorizes them to make certain radical repairs or changes in the condition of two old-fashioned fivestory tenement houses without improvements, arrange for occupancy by two families on each floor and a store on the ground floor, by installing ranges, boilers, white enamel basins and sinks which were not theretofore in the buildings, must be denied, as the executors must act on their own responsibility in the

matter.

APPLICATION pursuant to section 2615 of the Code of Civil Procedure for the construction of a will.

Adolph E. Gutgsell, for petitioners Gottlieb Maier and George Pfaehler, executors.

A. Welles Stump, special guardian, for Herman R. H. Krug, infant.

COHALAN, S. This is an application brought on by citation pursuant to the provisions of section 2615 of the Code of Civil Procedure for a construction of the will of the above named deceased. Section 2615 of the Code of Civil Procedure provides that: "An executor, administrator with the will annexed, or any person interested in obtaining a determination as to the validity, construction or effect of any disposition of property contained in a will, may present to the surrogate's court in which such will was probated, a petition setting forth the facts which show his interest and the particular portion of such will concerning which he requests the determination of the court."

By the will of the deceased his executors and trustees, among other things, were given certain real estate in trust upon the following terms: "To take

Surrogate's Court, New York County, December, 1914. [Vol. SS.

full charge of my aforesaid real estate and judiciously manage and control the same, collect and receive all rents, issues and profits thereof, paying therefrom all taxes, assessments, Croton water rent or charges, interest on bond and mortgage, fire insurance and all other expenses accruing in keeping my said real estate in a first-class condition." They were directed to pay and apply the net rents, issues and profits thereof toward the maintenance and education of Herman Krug, a grandson of the testator, until he arrived at the age of twenty-one years. Two of the parcels of real estate are old-fashioned five-story tenement houses without improvements, arranged for occupancy by two families on each floor and a store on the ground floor. The average monthly rents for these parcels for the years 1909, 1910 and 1911 were $291; 1912, $282; 1913, $259; 1914, $232. The petitioners ask this court to construe the 16th paragraph of said will, wherein they are given power to pay the necessary expenses in keeping the premises in a first-class condition, and by its decree say whether or not this paragraph of the will authorizes them to make certain radical repairs or changes in the condition of the premises by installing ranges, boilers, white enamel basins and sinks, which improvements were not heretofore in the buildings.

The construction asked by the executors and trustees is not a construction of the will within the purview and meaning of the statute, and I am of the opinion that they will have to act upon their own responsibility in this matter. They are asking not for a construction of the will, but rather for the instruction and direction of this court as to how to proceed with duties imposed upon them by law when they assumed the responsibilities of executors and trustees.

Application denied.

Misc.] Surrogate's Court, New York County, December, 1914.

Matter of the Contested Probate of the Last Will and Testament of WILLIAM HENRY GRIFFITHS, Deceased.

Wills

(Surrogate's Court, New York County, December, 1914.)

when properly executed

- execution by layman-appointment

of executors - subscribing witnesses — codicil.

Testator, a layman, after filling with testamentary provisions the space in an ordinary will blank down to the printed clause for the appointment of executors continued on to the third page leaving the second page blank. A sentence begun on the first page was completed on the third page and the word "over" was written on both pages to show the connection. The printed form on the first page for the appointment of executors was filled in and the testator and subscribing witnesses signed their names in the appropriate spaces on the first page. The writing continued connectedly down the third page to about the middle where the signature of the testator only and the date "Feby. 25, 1911" appeared and then followed a direction, signed by the testator only, that no bonds should be required of the executors named. At the bottom of the third page there was the following: "Feby. 27th, 1911. Codicil No. 1. I bequeath to my first born son Henry Wilson Griffiths the sum of Fifty dollars $50.00 in cash." Directly below this and at the actual end of the writing were the signatures of testator and subscribing witnesses. It appeared by the uncontradicted testimony that the date at the bottom of the third page was the date of the execution of the paper and that all the signatures were affixed at one sitting. It also clearly appeared that testator did not use the word "codicil" in its legal sense but referred to it as the "end of the will," meaning that the so-called codicil was part of the entire transaction in making the will. Held, that the signatures of testator and subscribing witnesses at the bottom of the third page were at the natural end of the will and that the entire writing was properly executed as a will and was entitled to be admitted to probate.

PROCEEDING upon the probate of a will.

Béla Darwin Eisler, for proponents Walter Wurzburger and John H. Pratt, executors.

Surrogate's Court, New York County, December, 1914. [Vol. 88.

Robert M. Boyd, Jr., for contestant, Henry Wilson Griffiths.

Warren C. Fielding, special guardian.

COHALAN, S. The will was drafted by the testator on an ordinary will blank. The space in the blank on the first page was inadequate for the testamentary provisions that the testator desired to make and, after filling that space down to the printed clause for the appointment of the executors, the testator continued on to the third page, leaving the second page blank. A sentence is begun on the first page and completed on the third page and the word "over" is written on both pages to show the connection between the provisions begun on the first page and completed on the third. The printed form on the first page for the appointment of the executors is filled in and the testator and the witnesses signed their names in the spaces for that purpose on the first page.

The writing continues connectedly down the third page to about the middle thereof, where there appears the signature of the testator only, and the date, " Feb. 25/1911." Then there follows a paragraph on the third page directing that no bond shall be required of the executors named on the first page. This paragraph is signed by the testator, but, like the paragraph immediately above, is not subscribed by the two witnesses.

At the bottom of the third page is a clause which appears on the paper as follows:

"Codicil #1. I bequeath to my first born son Henry Wilson Griffiths the sum of Fifty dollars $50.00 in cash."

Directly below this are the signatures of the tes

Misc.] Surrogate's Court, New York County, December, 1914.

tator and the two attesting witnesses. These subscriptions are at the actual end of the writing on the paper propounded for probate.

From the testimony it appears without contradiction that although two different dates appear on the paper the date at the bottom of the third page, February 27, 1911, is the actual date of execution, and that all the signatures were affixed "at one sitting."

The testator had invited the two witnesses to his home for dinner. After dinner he asked them to witness his will. The testator read what he had written. and one of the witnesses suggested that he should make some provision for his eldest son. The testator then wrote the clause which he called "Codicil #1," in which his eldest son is bequeathed the sum of fifty dollars. In the presence of the two witnesses the testator then signed his name at the places where his signature appears on the paper. The witnesses then signed the paper twice on the first page and at the end of the writing on the third page, opposite the signature of the testator. The testator indicated the place at the bottom of the third page where the two subscribing witnesses were to sign, saying: "This is the finish of it," or "This is the end of the will," or words to that effect.

The questions involved are whether the first page is a valid will, whether the last clause on the third page is a codicil, whether the whole paper is a single will, and, if so, whether it was properly executed at the end thereof by the testator and the two subscribing witnesses.

Because of the fact that material parts of the will on the third page are connected with the writing on the first page, it is well settled that the testamentary provisions above the signatures on the first page do not constitute a valid will.