In re the Probate of the Last Will & Testament of Jarvis , 124 Misc. 563 ( 1925 )

Hart, S.:

The testator, Eugene R. Jarvis, a member of the Buffalo fire department, procured a blank will, wrote in the spaces prefacing the instrument reciting its testamentary character, followed by two. paragraphs in his own handwriting containing legacies, and a third containing a residuary and forfeiture clause as to prospective contestants. He then signed [his name on the 1st page of the instrument. The 2d page of the printed blank, providing for the appointment of an executor, is also written in by the testator. The attestation clause follows and the signature of the testator appears again.

The proponent does not rely upon the signature appearing on the 1st page. (Matter of Van Tuyl, 99 Misc. 618.)

The subscribing witnesses are disinterested and, before signing their names, raised the question as to the necessity of testator signing in their presence. At this time he signed his name in the attestation clause. He acknowledged his signature, published the will and requested the witnesses to sign his will as witnesses. (Matter of De Hart, 67 Misc. 13.)

A superficial examination of the will would indicate that it was incomplete and unsigned, that probate should be denied. (Matter of Keeffe, 155 App. Div. 575; Matter of Rudolph, 180 id. 486.)

This case can easily be distinguished and should be considered on the broader equitable principles embodied in Matter of Field (204 N. Y. 448). There can be no possible doubt that the document expresses the intention of the testator, that he intended the instrument to be a will, that at the time of signing his name in the attestation clause in the presence of the witnesses it was intended by him to be his signature to his will and was so expressed and acknowledged before witnesses who signed their names at the end of the will.

Decree of probate may be entered.