In re the Estate of Goodman , 2 A.D.2d 558 ( 1956 )

Breitel, J.

The executors of a deceased, surviving widow, who had exchanged waivers of rights of election in their respective estates with her affianced husband, assert that the widow’s waiver, upon which the estate of the deceased husband relies, is invalid for lack of due acknowledgment. After trial before the Surrogate, the waiver was sustained, and it was held, that the widow had had no right of election in the estate of her deceased husband. The decree should be affirmed.

The husband and wife, both of whom are now dead, were planning to enter into what was a second marriage for each. Each was of mature years. Each was well endowed with this world’s goods. The husband was a lawyer. The wife was an active business woman. At the husband’s suggestion, before the marriage, each signed a waiver of right of election in the estate of the other. The husband’s waiver has never been questioned, but, of course, it never became material, because the husband predeceased the wife, although she did not survive him for long.

The issue in this case is a technical one, albeit a substantial technical one. The claim is that when the notary public took the acknowledgment, concededly an essential under the statute (Decedent Estate Law, § 18, subd. 9), the wife did not acknowledge the instrument to be hers in his presence. There is no dispute as to the genuineness of the signature. There is no dispute that the wife knew what she was signing. There is no dispute that the paper was delivered. There is no dispute that the notary public executed a certificate of acknowledgment.

The notary public was a bank clerk employed in the bank in which the wife’s corporate business and the wife had their bank accounts. The wife, who died before the trial, had testified in a deposition before trial that after she signed the waiver she left it on a dresser top. The husband is supposed to have taken it before the two left for the theater. She said she did not know-of her own knowledge what happened to it thereafter. There were extrajudicial statements obtained from the notary public, prior to the trial, by the wife’s representatives, that an employee of the wife’s corporate business, who was known to him, had brought the waiver to him for acknowledgment. The notary public said further, in his written statement, that knowing the signature, and checking it against the signature card in the hank, and knowing the emissary who brought the waiver to him, he executed the certificate of acknowledgment. Incidentally, he gave several other written statements, some of which were to the effect that the wife was in his presence when she acknowledged execution of the instrument, and others that she was not. Upon the trial, he testified unequivocally — although uncomfortably when confronted with his prior statements — that the wife had duly acknowledged the instrument in his physical presence when he executed the certificate of acknowledgment.

The testimonial, as distinguished from the documentary, proof in the case boils down to the notary public’s affirmative testimony, his prior inconsistent statements— as well as prior consistent statements — and the deceased widow’s deposition to the effect that she had not appeared before the notary public when the certificate of acknowledgment was executed.

It requires no great sophistication to recognize that the witnesses, both dead and alive, were testifying under strong motivations of interest or the embarrassments of prior or present prevarications. Indeed, the widow, too, had her difficulties. In her deposition, she first testified that she did not know that her husband-to-be had executed and delivered to her a waiver of his right of election. Later, on another day, she admitted it and corrected her testimony.

Before discussing the applicable principles of law, no emphasis is great enough to mark the fact that the authentication of an otherwise genuine document by a notary public is not to be lightly upset, especially in the absence of fraud, duress, undue influence, or their equivalent. Not only is there an absence of fraud or undue influence in procuring the authentication of the document in this case, but it is apparent that the document carried out the wife’s part of a mutual undertaldng with her husband, fully performed on his part. This belated attempt at impeachment, in the light of the proof offered by appellants in contradicting the notary public, namely, that the wife’s son and executor delivered the document to the wife’s employee to be authenticated by the notary public, suggests the application .of principles of estoppel.^*

Section 18 of the Decedent Estate Law requires that a waiver to be effective must be duly acknowledged. It has been held tha fc such an acknowledgment is a substantial requirement which is not satisfied merely by proof of genuine and knowing signature. (Matter of Howland, 284 App. Div. 306.)

Acknowledgment must be that required of a conveyance to be recorded. Section 384 of the Civil Practice Act provides that a certificate of acknowledgment makes the document thus acknowledged evidence without further proof. It does not say that it is a presumption. The statute goes on to provide that the certificate is not conclusive and that it may be rebutted.

The legislative history is clear. Prior to 1813 there was no statute characterizing the evidentiary effect of a certificate of acknowledgment to a document. There had been great unsettlement in titles to real property. As a consequence, there apparently had developed a view that certificates of acknowledgment were entitled to conclusive effect. At this point, it was held that it was unjust to give conclusive effect to a certificate of acknowledgment. It was recognized that the certificate was entitled to evidentiary force, but that it could be rebutted by contrary proof. (Jackson v. Schoonmaker, 4 Johns. 161.) In 1813, for the first time, a statute was adopted. It merely provided, however, that the certificate was entitled to evidentiary effect. (Rev. Law of N. Y. [1813], p. 370, § 5.) Later, the revisers took note of the Jackson case and made further revision in the statute to provide that the certificate of acknowledgment not only should have evidentiary effect, but should not be conclusive and might be rebutted by contrary proof. (Rev. Stat. of N. Y. [1829], part II, ch. 3, § 17; Rev. Stat. of N. Y. [2d ed. 1836], vol. 3, p. 606.) By section 9 of chapter 271 of the Laws of 1833 the same rule was accorded statutory codification with respect to acknowledged instruments applying to other than real property titles. These provisions were carried forward through the Code of Civil Procedure (§§ 935-937), into the present Civil Practice Act (§§ 384, 386). In sum, the purpose of the legislation, and its course, was to preclude conclusive effect to the certificate of acknowledgment, but never to detract from its status as evidence, having continuing probative value even in the face of contrary proof.

The decisional history of the rule is equally clear. There came a time when the argument Avas made, like that made in this case, that the statutory provision Avith regard to acknowledgments was a species of presumption limited in effect to that of shifting the burden of proof. The Court of Appeals, in language as clear as it is strong, rejected this contention. Said the court: ‘‘ A reasonable construction requires that the statements properly appearing in the certificate should be regarded as evidence of the facts stated, including the personal appearance of the party, the recognition of the signature as his, and the acknowledgment of execution. Adequate force to the word ‘ evidence ’ as used in section 935, can be given in no other way. ‘ Evidence without further proof ’ indicates that the facts certified are proof per se. Thus the words of the certificate become evidence of what they import and acquire probative force by command of the statute (Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 82-83.) The court went on further to point out that the weight and value attached to the certificate survive contrary proof and were sufficient to send a case to the jury so that it might decide between the probative force of the certificate and the evidence produced in rebuttal. The rule has thereafter been uniformly followed, both with respect to conveyances in real property and other acknowledged documents (see, e.g., Rogers v. Pell, 154 N. Y. 518; Rock v. Rock, 195 App. Div. 59; Spraker v. Spraker, 152 Misc. 867; Hedger v. Reynolds, 216 F. 2d 202).

Consequently, the effect of the certificate of acknowledgment was to provide evidence that survived any contrary proof. It was available to the trier of the facts for purposes of credit, despite contrary proof if not believed, and even if such proof consisted of impeachment by the one who himself executed the certificate of acknowledgment. (Rock v. Rock [195 App. Div. 59, 63, supra], holding that the prima facie evidence of the certificate continues to have probative value, to be weighed against contrary proof by the trier of the facts; but also stating that the contrary proof must be “ more than a bare preponderance of the evidence ’ ’ and suggesting that the burden must be supported by testimony from disinterested witnesses and to a clear and convincing degree so as to amount to a moral certainty; see, also, Spraker v. Spraker [152 Misc. 867], holding that the contrary proof must be established through disinterested witnesses, must be clear and convincing, and that impeachment by the notary public himself was insufficient in the absence of corroboration.)

Appellants, executors for the deceased widow, have urged a number of propositions with respect to a variety of presumptions that are of different character, as if presumptions were of one kind. There are, of course, presumptions which do not survive the presentation of affirmative or negative proof of the fact to be proven. Such, for example, too, are the cases of People ex rel. Wallington Apts. v. Miller (288 N. Y. 31) and Matter of Magna v. Harris Co. (258 N. Y. 82), in which there were involved particular limited presumptions, which disappear upon the presentation of affirmative or negative proof with respect to the fact to be proven. The difficulty which the words and the concept of ‘‘ presumption ’ ’ can engender is great, unless there is careful analysis. This is explained with great clarity and authority in Wellisch v. John Hancock Mut. Life Ins. Co. (293 N. Y. 178, 184), and hardly requires restatement.

Hence, in this case, by the language of the statute, by the legislative history, and by the controlling decisions of the Court of Appeals, a certificate of acknowledgment under sections 384 and 386 of the Civil Practice Act gives not merely a presumption, but provides evidence itself, sufficient to take the case to the trier of the facts, notwithstanding contrary proof.

Here, in the matter at hand, there is the certificate of acknowledgment itself, perhaps, in this background, the most reliable evidence. There is then the testimony of the notary public. His prior inconsistent statements are not available as evidence-in-chief. (Murphy v. Peterson Cipher Code Corp., 303 N. Y. 912; Richardson on Evidence [8th ed.], § 522.) And then there is the testimony of the surviving widow who, in her deposition, testified to the contrary.

Consequently, the Surrogate was warranted, as this court is warranted, in holding that the evidence of due and proper execution of the waiver was not overcome in this case by clear and convincing proof.

While it is not necessary for us to hold or to say more, some comment in support of the Surrogate’s decision on the facts is in order. The only evidence that could be treated as affirmative evidence against due authentication was the testimony by deposition of the widow. The Surrogate was justified in rejecting this testimony, and we reject it. Her testimony, apart from being interested, reveals sufficient departures from the truth and the credible to be deemed unreliable.

The other testimony relied upon by appellants, namely, that of two lawyers then associated with the attorneys for appellants, cannot be considered as affirmative evidence against authentication, but only as evidence tending to impeach the testimony of the notary that the document was duly authenticated. Suffice it to say that this evidence of prior inconsistent statements did not require a rejection of the notary’s affirmative evidence. We may go further, however, and observe that if the testimony of these lawyers were available as evidence-in-chief and were to be fully accepted it would compel the conclusion that the wife’s son, if not the wife, had, at very least, procured the authentication under circumstances which suggest estoppel.

Indeed, if the rule in the Albany County Sav. Bank case (149 N. Y. 71, supra), followed in Rock v. Rock (195 App. Div. 59, supra) and Spraker v. Spraker (152 Misc. 867, supra), be applied to this case, and it would seem that it should, had the Surrogate found other than he did, the decree would have to be reversed as a matter of law. For clearly, there is neither clear nor convincing evidence, to a moral certainty, to upset the official act of the notary public. For was there evidence, let alone a preponderance of evidence, by disinterested witnesses to destroy the effect of the certificate.

Accordingly, the decree denying the deceased widow’s right of election should be affirmed, on the law and on the facts, with costs to the respondents against the appellants.

* If, in fact, the acknowledgment was obtained by the party who would now repudiate it, there may be an estoppel. (Mutual Life Ins. Co. v. Corey, 135 N. Y. 326.)