testimonium clause in New York

1963Neither the testimonium clause nor the attestation clause is a necessary part of a will (Younger v. Duffie, 94 N. Y. 535 ).

1917In Younger v. Duffle, 94 N. Y. 535 , the testimonium clause and a recital or certificate by a notary in the Kingdom of Spain (where the will was executed) of certain formalities follow the disposing parts of the will, and immediately thereunder followed the signatures of the testator, the three subscribing witnesses and the notary.

1937It is a rule designed as a safeguard against fraud and mistake.” In Matter of Ryan ( 252 N. Y. 620, 621 [1930]) it is stated, u and questions certified answered in the negative on the authority of Matter of Conway ( 124 N. Y. 455 ) which has hot been overruled by Matter of Field ( 204 N. Y. 448 ).” In the Conway case we find (at p. 460): “ If, by preceding the testimonium clause with the words ‘ carried back of will,’ all that is written thereon may be made a part of the will, what is to prevent making another sheet a part of it also by writing on the bottom of that page continued on sheet one

1899In Matter of Whitney ( 153 N. Y. 259 ), as in The Matter of Conway (supra), the will is drawn upon a printed blank, covering only one page, and the testator and subscribing witnesses signed at the foot thereof.

1968Since neither the testimonium clause nor the attestation clause is a material provision of the will (Matter of Serveira, 205 App. Div. 686, 689 ; Matter of Haber, 118 Misc. 179, 182 ; Matter of Dupin, 36 Misc 2d 309 ), it cannot be held, as a matter of law, that these purported witnesses did not sign “ at the end ”.

1968Since neither the testimonium clause nor the attestation clause is a material provision of the will (Matter of Serveira, 205 App. Div. 686, 689 ; Matter of Haber, 118 Misc. 179, 182 ; Matter of Dupin, 36 Misc 2d 309 ), it cannot be held, as a matter of law, that these purported witnesses did not sign “ at the end ”.

1968Since neither the testimonium clause nor the attestation clause is a material provision of the will (Matter of Serveira, 205 App. Div. 686, 689 ; Matter of Haber, 118 Misc. 179, 182 ; Matter of Dupin, 36 Misc 2d 309 ), it cannot be held, as a matter of law, that these purported witnesses did not sign “ at the end ”.

1949Co. ( 80 F. 2d 295 ) held that a policy which had a testimonium clause dated January 7,1931, should be regarded as dated September 29,1930, as the application which constituted a part of the contract provided “ Date Policy as of Sep. 29,1930 ”, and there would be no hesitancy in this court’s making a similar finding if the application or the policy herein contained equivalent words indicating an agreement to date the policy as of July 20,1946.

1937It is a rule designed as a safeguard against fraud and mistake.” In Matter of Ryan ( 252 N. Y. 620, 621 [1930]) it is stated, u and questions certified answered in the negative on the authority of Matter of Conway ( 124 N. Y. 455 ) which has hot been overruled by Matter of Field ( 204 N. Y. 448 ).” In the Conway case we find (at p. 460): “ If, by preceding the testimonium clause with the words ‘ carried back of will,’ all that is written thereon may be made a part of the will, what is to prevent making another sheet a part of it also by writing on the bottom of that page continued on sheet one

1934(Bird v. Merklee, 144 N. Y. 544, 550 .) If there be doubt about the correctness of the construction which the Surrogate has given clause (d) and either construction contended for is reasonably possible, “ the one that will sustain the validity of the will is to be preferred.” (Matter of Gallien, 247 N. Y. 195, 200 .) Under the terms of this will, it seems to us that the intent to dispose of the entire remainder of the estate is evidenced by the clause V (d) and the request to the executor immediately preceding the testimonium clause and that the will should not be subjected to a rule of constr

1934(Bird v. Merklee, 144 N. Y. 544, 550 .) If there be doubt about the correctness of the construction which the Surrogate has given clause (d) and either construction contended for is reasonably possible, “ the one that will sustain the validity of the will is to be preferred.” (Matter of Gallien, 247 N. Y. 195, 200 .) Under the terms of this will, it seems to us that the intent to dispose of the entire remainder of the estate is evidenced by the clause V (d) and the request to the executor immediately preceding the testimonium clause and that the will should not be subjected to a rule of constr

1932However, in Matter of Miller ( 119 Misc. 4 ); Matter of Jarvis (124 id. 563), and Matter of Case (126 id. 704) wills in which the only subscription was contained in the attestation clause were admitted to probate, and a like result was reached in Matter of Acker ( 5 Dem. 19 ); Matter of Noon ( 31 Misc. 420 ), and Matter of De Hart (67 id. 13), where the only subscription was contained in the in testimonium clause.

1932However, in Matter of Miller ( 119 Misc. 4 ); Matter of Jarvis (124 id. 563), and Matter of Case (126 id. 704) wills in which the only subscription was contained in the attestation clause were admitted to probate, and a like result was reached in Matter of Acker ( 5 Dem. 19 ); Matter of Noon ( 31 Misc. 420 ), and Matter of De Hart (67 id. 13), where the only subscription was contained in the in testimonium clause.

1930In Shaughnessey v. Lewis ( 130 Mass. 355 ) and Orcutt v. Moore (134 id. 48, 52) it was held that the date contained in the testimonium clause of a mortgage of personal property was not conclusive, and that parol evidence was admissible to show the actual facts as to when the instrument was executed.

1928But it appears, first, that the testimonium clause indicates that the city, through its board of estimate, is not sealing the instrument, the only one who is sealing it being the party of the second part, the plaintiff; secondly, as to whether it was authoritatively affixed by the city, it appears that the resolution authorizing the making of the contract does not authorize the affixing of a seal, and, therefore, such a seal as may be affixed on the contract is not authoritatively affixed thereto on behalf of the city; and, thirdly, while the instrument itself does not contain evidence that th

1923(Jackson v. Jackson, 39 N. Y. 153, 159 ; Younger v. Duffie, 94 id. 535, 539.) And so. too, may we view the testimonium clause as in nowise material or necessary.

1899In this case the court, after calling attention to the fact that the object of the statute is “ to surround testamentary dispositions with such safeguards as will protect them from alteration,” say: “ It is likewise true that in this will, as well as O’Neil’s, the actual physical termination of the will is not at the place where the testator subscribed his name.” It then calls attention to the fact that there is no way of protecting the testator as contemplated by the statute if the will may be indefinitely extended by simply writing upon the face of a will, before the signature, “ carried to

1899In Matter of Whitney ( 153 N. Y. 259 ), as in The Matter of Conway (supra), the will is drawn upon a printed blank, covering only one page, and the testator and subscribing witnesses signed at the foot thereof.

1891(Matter of Blair, 84 Hun, 581 , 66 N. Y.