Opinion
April, 1908.
Jacob Fromme, for proponent.
Henry D. Frisbie, for contestant.
The evidence establishes that the paper propounded for probate was duly executed as a will on June 21, 1897. By it the testatrix bequeaths to George A. Woodruff and Charles Woodruff all of her estate, subject to an exception expressed as follows: "Excepting, however, I give and bequeath unto my friends named in the annexed list, bearing date June 21, 1897, and signed by myself, the several articles of personal property in the said list as set forth." This is followed by a paragraph appointing an executor.
It appears that the list referred to in this paper was not physically annexed to it, nor was it filed for probate with it. In pursuance of an order procured by the contestant, the proponent subsequently filed a memorandum book which had been found in an envelope with the will in the safe deposit box of the deceased. This book, with its contents, was admitted in evidence, and is stated by the proponent to be the list referred to in the will. It is dated on the day of the execution of the propounded paper, is wholly in the handwriting of the deceased and bears her unattested signature. The proponent does not ask for the probate of this list or memorandum, nor, being unattested and of a testamentary nature, could it be admitted to probate. The contestant, however, argues that probate must also be denied to the duly executed paper because, as he insists, it is not the whole will of the testatrix.
In none of the cases cited nor in any case that I am acquainted with has probate been refused to a paper properly executed as a will merely because it referred to and attempted to incorporate a distinct and separate paper not so executed. In Matter of Sanderson ( 9 Misc. 574), a case very similar in its facts to the case at bar, the surrogate of Orleans county granted probate to a duly executed paper while denying it to one imperfectly executed, which was referred to therein and was intended by the testatrix to supplement and complete the duly executed paper. His decision is in harmony with the case of Thompson v. Quimby, 2 Bradf. 449, affid., 21 Barb. 107, and with the more recent case of Matter of Emmons, 110 A.D. 701. The effect of references in wills to extraneous papers was considered in Booth v. Baptist Church, 126 N.Y. 215, 247, which was an action for the construction of a will, and it was held that a paper referred to in the will could not be treated as incorporated therein because, though testamentary in character, it was not executed as a will. The will in that case disposed of a very large estate, while the extraneous paper concerned a legacy of only $10,000. No expression contained in the opinion lends the slightest support to the argument of the contestant now under consideration, and it is scarcely conceivable that the court which delivered that opinion would have sustained an objection to the probate of the will then before it on the ground in question.
The paper propounded as a will is entitled to probate. I will find as a fact that the memorandum book admitted in evidence is the list referred to therein, but without passing upon its force or effect. Costs of the proponent, including one copy of the minutes, will be paid out of the estate. Tax costs and settle findings and decree on notice.
Decreed accordingly.