N. Y. BANKING LAW § 8 (MCKINNEY'S CONSOLIDATED LAWS ANNO. 1950) § 8. Deposits by custodian designated by administrator of veterans' affairs, or by persons certified by social security administration When any deposit shall be made for the benefit of a minor by the person who has been designated the custodian of such minor by the administrator of veterans' affairs pursuant to the provisions of an act of congress entitled the "World War Veterans' Act, 1924" 2, or when a deposit shall be made for the benefit of an individual by a person who has been certified by the social security administration as the person to whom payment for the benefit of such individual should be made pursuant to the provisions of an act of congress entitled the "Social Security Act", the deposit, together with any interest or dividends credited thereon, may be paid to such custodian or his successor designated by the administrator of veterans' affairs or to such person or his successor certified by the social security administration, and the receipt or acquittance of such custodian or person or such successor shall be a valid and sufficient release and discharge to the depositary for any payment so made. Added L. 1948, c. 737; amended L. 1949, c. 28, eff. Feb. 21, 1949. N. Y. DECEDENTS ESTATE LAW § 16 (MCKINNEY'S CONSOLIDATED LAWS ANNO. 1949 AND AMENDMENT 1956 POCKET PART) § 16. Nuncupative or holographic wills of persons in actual military or naval service or mariners No nuncupative or unwritten or holographic will, bequeathing or devising personal or real estate, shall be valid, unless made by a soldier or sailor while in actual military or naval service, or by a mariner while at sea and when made in the following manner: (1) A nuncupative oral will made within the hearing of two persons and the execution and the tenor thereof proved by at least two witnesses; or (2) A holographic will when written entirely in the handwriting of the maker even though the same be unattested. Any such disposition of property by a soldier or sailor shall become invalid and unenforceable upon the expiration of one year following his discharge from military or naval service provided he possesses testamentary capacity at the time of such expiration; if, however, he shall lack testamentary capacity at the expiration of one year from the date of such discharge, it shall continue to be valid and enforceable until the expiration of one year from the time he shall have regained testamentary capacity. As amended L. 1942, c. 688, § 1, eff. May 6, 1942. Validity at common law, see Davids' New York Law of Wills, § 424. Use of both nuncupative and holographic wills by soldiers was continuously authorized and approved at common law, every enactment restricting their use by civilians being expressly declared to be inapplicable to men in military or naval service. In re Zaiac's Will, 1937, 162 Misc. 642, 295 N. Y. S. 286, modified on other grounds 255 App. Div. 709, 5 N. Y. S. 2d 897. Wills of soldiers and sailors are left untrammeled by statutes dealing with wills and are governed by principles of common law. Id. 1 There is no section 7. 2 See 38 U. S. C. A. § 421 et seq. See 42 U. S. C. A. § 301 et seq. 2. Construction Statutory changes, see Davids' New York Law of Wills, § 424. This section is procedural and remedial. In re Thompson's Will, 1948, 191 Misc. 109, 76 N. Y. S. 2d 742. This section is given a liberal construction. In re McDonald's Estate, 1942, 179 Misc. 284, 37 N. Y. S. 2d 945. This section extends a special privilege and may not be extended beyond true meaning. In re Dumont's Estate, 1939, 170 Misc. 100, 9 N. Ÿ. S. 2d 606, affirmed 257 App. Div. 952, 13 N. Y. S. 2d 289, affirmed 282 N. Y. 606, 25 N. E. 2d 388. In considering result of statutory enactments on testamentary privileges of soldiers and sailors, effect of statutes passed, and legislative purpose in their enactment, must be evaluated in light of applicable historical background, and of conditions existing at time that passage was accomplished, which they were designed to remedy. In re Zaiac's Will, 1937, 162 Misc. 642, 295 N. Y. S. 286, modified on other grounds 255 Åpp. Div. 709, 718, 5 N. Y. S. 2d 897. "The statute strictly announces the circumstances under which this privilege can be enjoyed. It does not propose to confer it beyond the limits it has laid down. Nuncupative wills are at all times dangerous wills. With education and general information of legal rights, the necessity and the use of them is fast disappearing. And it is not the duty of a Probate Court of this day to endeavor to enlarge, by novel constructions and liberal ruling, the class of cases to which the written law of the land has confined these testamentary privileges." Givin's Will, 1865, 1 Tuck. 44. 3. Purpose "It is the policy of the laws of this state to confer upon mariners being at sea, certain peculiar privileges in making testamentary dispositions of personal property. The privi leges are given from the peculiar situation in which they are placed, in being separated from society, and not having the means of deliberately making a will with the formalities required of other citizens." Givin's Will, 1865, 1 Tuck. 44. 4. Retroactive effect This section granting persons in actual military service authority to execute holographic wills extends privilege during all of such service and not merely after the effective date of the section. In re Thompson's Will, 1948, 191 Misc. 109, 76 N. Y. S. 2d 742. 5. Execution, method of Execution and publication, see Davids' New York Law of Wills, § 428. Essential requisites for valid and nuncupative will are that it was declared by man who was at the time a soldier in actual military service or a mariner while at sea, that he was possessed of testamentary capacity and free from restraint, that his act indicated testamentary intent, that declarations were sufficiently explicit and intelligible to permit finding of purport and scope, and that execution was proved by at least two witnesses. In re Zaiac's Will, 1937, 162 Misc. 642, 295 N. Y. S. 286, modified on other grounds 255 App. Div. 709, 718, 5 N. Y. S. 2d 897. The execution and tenor of a soldier's noncupative will must be proved by two witnesses. In re Zaiac's Will, 1938, 279 N. Y. 545, 18 N. E. 2d 848. Where decedent was not a soldier or sailor in the naval service or a mariner when unwitnessed instrument was executed and it did not appear that execution was in a state or foreign country, the laws of which recognize holographic wills, the instrument was not entitled to probate as decedent's nuncupative will. In re Cartoon's Will, 1944, 48 N. Y. S. 2d 834. A chief engineer on a steamship, who while upon the high seas suffering from a seizure of a chronic disease, stated to the master and first mate of the vessel that he wished all his property to go to his daughter in case anything happened to him, executed a valid noncupative will, when proved by the attesting witnesses, although the testator partially recovered and died on shore several days later. Matter of O'Connor, 1909, 65 Misc. 403, 121 N. Y. S. 903, 7 Mills 319. 6. Mariner-Definition Mariners at sea, who are, see Davids' New York Law of Wills, §§ 425, 426. The term "mariner" as used in this section applies to "every person in naval or mercantile service from a common seaman to the captain or admiral" and hence includes the commandant of a United States gunboat. Givin's Will, 1865, 1 Tuck. 44. Seaman about to depart on voyage to South American port, which was considered a safe run notwithstanding war conditions and remote peril of death by torpedoing, could not make an oral will before sailing. In re Anderson's Estate, 1943, 180 Misc. 827, 46 N. Y. S. 2d 128. Under this section giving the privilege of making a nuncupative will to a mariner "while at sea", while deceased was absent from ship without permission and in defiance of orders, he was not entitled to the privilege of making a nuncupative will. In re McDonald's Estate, 1942, 179 Misc. 284, 37 N. Y. S. 2d 945. A nuncupative will made by a cook on board a steamship, while the vessel is lying at her dock in Bremen, is valid, as in such case he is regarded as a mariner at sea and hence comes within the exception of this section. Ex parte Thompson, 1856, 4 Bradf. 154. The master of a coasting vessel, while on a voyage, may make a nuncupative will of personal property, even though his ship, at the time of the will's execution, is lying at anchor in an arm of the sea. Hubbard v. Hubbard, 1853, 8 N. Y. 196. A nuncupative will made by the commandant of a gunboat on the Mississippi river, near Vicksburg, was not one made by a mariner "while at sea" and hence was invalid. Givin's Will, 1865, 1 Tuck. 44. 8. Actual military service Status of soldier, see Davids' New York Law of Wills, § 426. A United States soldier, captured after escape from Philippine Islands and imprisoned in Japanese prisoner of war camp when he stated to companions his wishes concerning disposition of his property in event of death, was in "military service on active duty" within this section relating to nuncupative wills. In re Kapp's Will, 1948, 191 Misc. 309, 77 N. Y. S. 2d 922. Prisoner of war was in "military service" within this section authorizing person in actual military service to execute holographic will. In re Thompson's Will, 1948, 191 Misc. 109, 76 N. Y. S. 2d 742. A nuncupative will executed in New York after soldier returned from overseas service prior to end of war but while soldier was still a member of the army was properly denied probate on ground that soldier was not in "actual military service" within meaning of this section. In re Dumont's Will, 1939, 257 App. Div. 952, 13 N. Y. S. 2d 289, affirmed 282 N. Y. 606, 25 N. E. 2d 388. Under this section, privilege of making nuncupative will is granted only to soldiers in "actual military service," meaning "on an expedition." In re Dumont's Estate, 1939, 170 Misc. 100, 9 N. Y. S. 2d 606, affirmed 257 App. Div. 952, 13 N. Y. S. 2d 289, affirmed 282 N. Y. 606, 25 N. E. 2d 388. Soldier is "in actual military service" where he is in actual warfare, on way into war or on expedition, on military service in enemy country, or on eve of embarkation or like situation. In re Zaine's Will, 1937. 162 Misc. 642, 295 N. Y. S. 286, modified on other grounds 255 App. Div. 709, 718, 5 N. Y. S. 2d 897. Soldier's statement to another soldier made at training camp prior to embarkation for France that he wanted his sister to have his war risk insurance, and statement made to soldier in France in actual presence of enemy was made "in actual military service" so as to render will valid, but statement made to friend while on leave of absence from camp prior to departure for overseas was not such statement. Id. A soldier was "in actual military service" within the meaning of this section while he was in a military camp in this country and knew that he was about to go overseas to a foreign land to take a part in the world war. Matter of Mallery, 1926, 127 Misc. 784, 217 N. Y. S. 489, affirmed 220 App. Div. 794, 221 N. Y. S. 859, affirmed 247 N. Y. 580, 161 N. E. 190. Statements by soldier while in camp in United States that in event of anything happening to him he wanted certain persons to get everything he had warrants a decree admitting such declarations to probate as nuncupative will of soldier, particularly where during time when declarations were made decedent was of sound mind and memory and under no restraint or duress. In such case letters written by decedent subsequent to the oral statements are admissible in evidence as corroborating his proved intent. Id. Statements by a soldier to his comrades, while in active service and just before and after his capture by enemy, to effect that in event that he died he wished to have all of his property go to a certain named person, were testamentary declarations entitled to be admitted to probate as nuncupative will of soldier, and valid in law to pass his personal property. Matter of Mason, 1923. 121 Misc. 142. 200 N. Y. S. 901. A letter written, in May, 1864, by officer in U. S. army, while it was moving on Richmond, to his sister bequeathing to her all his property, which was personal in its nature, was valid as a nuncupative will, being made by a soldier while in active service. Botsford v. Krake, 1866, 1 Abb. Prac. N. S. 112. 9. After-acquired property Expressions of soldier in conversations with others and in letter to sister concerning his war risk insurance that in case of his death sister was to receive everything he had, to get his property, were broad enough, though soldier possessed no property at time, to recover any property he might thereafter acquire, since disposition must be deemed to speak from' date of death, and cause any subsequently acquired property to devolve pursuant to its terms. In re Zaiac's Will, 1937, 162 Misc. 642, 295 N. Y. S. 286, modified on other grounds 255 App. Div. 709, 718, 5 N. Y. S. 2d 897. 10. Incorporation by reference Direction in will that certain business profits be added to corpus of trusts created by will until beneficiary reached 30 years of age, when trust would terminate, and failure of clause creating the trusts to provide for distribution of accumulated income, including the business profits, upon each beneficiary's reaching majority, violated this section and beneficiary attaining age of 21 years was entitled to portion of trust fund representing his share of accumulated income and business profits. In re Byers' Will, 1940, 17 N. Y. S. 2d 704. Under will bequeathing to testatrix' niece a certain sum "to be disposed of as I have orally requested her to do," which oral request designated certain beneficiaries, sum sought to be bequeathed as attempted trust was void, and hence sum passed under residuary clause, where testatrix gave niece no discretion, legacy was not charitable, and no beneficiaries of such disposition were designated in will. In re Kane's Will, 1937, 162 Misc. 785. 295 N. Y. S. 671. Where testator gave his personal property to his executor "in trust, however, and for the purposes of paying out and disposing of same as I have advised and directed him to do." the total failure of testator to designate the beneficiaries of the trust in the will makes it, to that extent, an unwritten will ineffectual for any purpose. Reynolds v. Reynolds, 1918, 224 N. Y. 429, 121 N. E. 61. A provision of the testatrix's will, which bequeathed various articles "enumerated in a memorandum" to her executors to distribute the articles among the persons named in the memorandum as therein provided, is void as a testamentary disposition of property. Matter of Kelly, 1934, 153 Misc. 445, 274 N. Y. S. 488. 11. Proof, sufficiency of Testimony of two companions that United States soldier while in Japanese prisoner of war camp, where he died, stated to them that in event of death he wanted all his property to go to mother and none to father, sufficiently established making a will and tenor thereof to entitle such testamentary declaration to probate as nuncupative will. In re Kapp's Will, 1948, 191 Misc. 309, 77 N. Y. S. 2d 922. Where deceased died two and one-half years after effective date of this section authorizing execution of holographic will by persons in actual military service, declaration in letter of deceased, written while he was in military service but before effective date of the statute giving disposition of property desired was valid holographic will and would be admitted to probate or it could be held corroborative of nuncupative oral will to the same tenor. In re Thompson's Will, 1948, 191 Misc. 109, 76 N. Y. S. 2d 742. The declaration of same matter to two different witnesses at different times complied with this section regarding nuncupative wills and could be admitted to probate as decedent's last will or used to corroborate decedent's letter purporting to make like disposition of property. Id. In proceeding to revoke letters of administration and to cause to be admitted to probate an alleged nuncupative will, evidence was insufficient to establish the making of will by deceased. In re McDonald's Estate, 1942, 179 Misc. 284, 37 N. Y. S. 2d 945. In proceeding to probate soldier's nuncupative will, evidence was sufficient to establish declaration of soldier's intent that if anything happened to him he wanted everything to go to his fiancee. In re Dumont's Estate, 1939, 170 Misc. 100, 9 N. Y. S. 2d 606. affirmed 257 App. Div. 952, 13 N. Y. S. 2d 289, affirmed 282 N. Y. 606, 25 N. E. 2d 388. Nuncupative will of soldier on active service admitted to probate as to personal property only on proof of execution of oral statement and of testator's soundness of mind by his comrades, decedent's letters from camp and from overseas to his family expressing his solemn appreciation of the uncertainties of life and confirming his testamentary expressions. The fact that the declarations as to his will were made separately to various witnesses who testified did not violate this section. Matter of Miller, 1929, 134 Misc. 671, 236 N. Y. S. 529. Portions of two letters written by a soldier while in active military service of United States in World War, and relating to distribution of his personal property, will be admitted to probate as his last will, where proof shows testamentary capacity, apprehension of death, and the corroboration by two witnesses required under Code of Civil Procedure, $ 2611, now Surrogate's Court Act, § 141. Matter of Hickey, 1920, 113 Misc. 261, 184 N. Y. S. 399. Testimony of two witnesses that soldier had stated desire that sister have his property was sufficient to support finding that soldier had executed nuncupative will notwithstanding soldier at time had in mind only insurance policies, where policies constituted his whole estate. In re Zaiac's Will, 1938, 279 N. Y. 545, 18 N. E. 2d 848. 12. Gift causa mortis A voyage is not a type of peril which constitutes a permissible basis for substituting gift causa mortis for this article. In re Anderson's Estate, 1943, 180 Misc. 827, 46 N. Y. S. 2d 128. Where there was no showing that salary or bonus was due deceased seaman before he sailed on ship which was subsequently torpedoed, such salary and bonus was not subject to a gift causa mortis made before sailing. Id. Where seaman immediately before sailing was in good health and in no apprehension of impending peril, there was no basis for a gift causa mortis, notwithstanding that voyage resulted in seaman's death. Id. "Gifts causa mortis" are to take effect only in case of donor's death and are revocable during his life, and hence are essentially testamentary, so that the same considerations of caution which prompted legislation relative to requisite formalities of execution and publication of a valid will require insistence on all the requisites which the common law prescribes for such gifts, in order to establish their validity. In re Cardwell's Estate, 1943, 180 Misc. 854, 43 N. Y. S. 2d 773, reversed on other grounds 268 App. Div. 514, 52 N. Y. S. 2d 69, affirmed 295 N. Y. 916, 68 N. E. 2d 29. "Unwritten or nuncupative wills are valid only when made by soldiers engaged in military service, or mariners at sea. 2 R. S., 60, § 22. Gifts, however, in contemplation of death, may take effect when perfected by an actual delivery during the life of the donor." Williams v. Fitch, 1859, 18 N. Y. 546. DECEDENTS ESTATE LAW § 16. AMENDMENT (MCKINNEYS CONSOLIDATED LAWS, 1956, POCKET PT) § 16. Nuncupative or holographic wills of persons in actual military or nava! service or mariners. 3. Purpose Relaxation of formal requirements of a will in case of a holographic instrument executed by a soldier while in actual military service service is invoked by the single factor of soldier's status in service at time of writing instrument. In re McAllister's Will, 1955, 207 Misc. 884, 141 N. Y. S. 2d 361. 11. Proof, sufficiency of Letter from soldier to his sister showed animo testandi. 207 Misc. 884, 141 N. Y. S. 2d 361. In re McAllister's Will, 1955, Under subdivision 2 of this section relating to holographic wills made by soldiers while in actual military service, letter which was written by soldier to his sister and which showed animo testandi constituted a testamentary instrument, irrespective whether soldier had had any assets to dispose of or effectively disposed of them by instrument, or had had an opportunity to execute a former will, or had been on eve of embarkation. Id. N. Y. CLEVENGERS PRACTICE MANUAL 1948 SURROGATE COURT ACT § 141 § 141. Witnesses to be examined; proof required.-Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. 'Where the will is on file in a court or public office, of another state of the United States, or in a court, or public office, of a foreign country, and under the laws of such state or country, the will cannot be removed, the surrogate may issue a commission to take the testimony in the matter and may admit the will to probate upon satisfactory proof of its provisions, that it was in existence at the time of the death of the testator and that it was duly executed; or where the will is brought to the surrogate's court by a representative of a public office' of a state or country, the surrogate may take the testimony in the matter and permit said representative to return the will to said state or country, and the testimony so taken and the decree admitting a will upon such testimony shall have the same force and effect as though the will had been filed or had remained in the surrogate's office. Before "an oral" nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. "Before a holographic will made by a soldier or sailor while in actual military or naval service, or by a mariner while at sea, is admitted to probate, the handwriting of the testator must be proved." The proofs must be reduced to writing. Any party to the proceeding, "before or after filing objections to the probate of said will,' may request the oral examination of the subscribing witnesses thereto' and may examine any or all of the subscribing" witnesses and any other witness produced by the proponent before the surrogate." (Am. L. 1922 ch 653, in effect April 13; L. 1925 ch. 575, in effect Sept. 1; L. 1932 ch. 486, in effect Sept. 1; L. 1935 ch. 380, in effect Sept. 1; L. 1942 ch. 688, in effect May 6.) Derivation: CCP § 2611, with change; as revised by L. 1914 ch. 443 from CCP § 2618; as am. by L. 1913 ch. 412; from L. 1837 ch. 460 § 10, 11. Amendments of section: L. 1922 ch. 653 added 2d sentence at fig. 1s, except at fig. 2s, 3 and 4. L. 1925 ch. 575 changed "officer" to "office" at fig. 3, and added matter at fig. 5s (except at fig. 6s) and 7 and "without first filing objections to the probate of such will" at fig. 9, deleted by L. 1932 ch. 486. L. 1932 ch. 486 changed "of" to "or" at fig. 4, added "or after" at fig. 6s, changed "such" to matter at fig. 8s and deleted matter at fig. 9 as added by L. 1925 ch. 575. L. 1935 ch. 380 added matter at fig. 2s. L. 1942 ch. 688 added matter at fig. 10s and 11s; and deleted at fig. 10s "a". Execution and proof of wills: Dec. Est. L. §§ 10-48. SYNOPSIS OF ANNOTATIONS Witnesses Who Must Be Examined Witnesses Who May Be Examined Examination of Witnesses Foreign Wills; Filed Elsewhere Nuncupative Will: Sufficiency Declaration or Publication: Sufficiency Signatures; Sufficiency of Proof Construction: Liberal construction: to the end that interested parties can have full examination of subscribing witnesses and inspection of prior wills, which it is claimed were practically like the will in question. Re Beeman, 221 AD 129, 222 NYS 751; Re Hawley, 133 Mis 572, 233 NYS 321. Distinguished form: examination before trial, under CPA § 288. Re Feldstein, 133 Mis 255, 232 NYS 327; Baker's Will. 160 Mis 862, 290 NYS 925. SCA § 141 as distinguished from § 143, relating to manner of proof of the due initial execution of the document itself. Herle Will, 169 Mis 197, 7 NYS 2d 189. Purpose of § 141 is to enable objectors to discover facts before determining whether to file objections to probate. Re O'Melia, 213 AD 387, 210 NYS 615. WITNESSES WHO MUST BE EXAMINED Absentee witeness: his testimony need not be taken unless demanded under CCP § 2620, as amended by L. 1888 ch. 508. Re Clark, 75 Hun 471, 27 NYS 681. Two subscribing witnesses: at least must be examined. Auburn Theo Sem v. Calhoun, 25 NY 422 rev. 38 Barb 148; Huber, 181 AD 635, 168 NYS 890; Sizer, 129 AD 7, 113 NYS 210 aff. 195 NY 528; DeHaas, 9 AD 561, 41 NYS 696; Van Geison, 47 Hun 5; Graber, 2 Dem 216; Hesdra, 17 StR 612 aff. 119 NY 615; Masters, 1 CivP 459; Cann's Est, 136 Mis 428, 240 NYS 840; Upton v. Bernstein, 76 Hun 516, 27 NYS 1078. Each witness need not testify that all statutory requirements have been complied with. Graham, 9 NYS 122; Re Hardenburg, 85 Hun 580, 33 NYS 150. Inability to find one subscribing witness justifies dispensing order under § 142. Walters' Est, 172 Mis 207, 15 NYS 2d 8. Legacy to subscribing witness: does not release him testifying. Loder v. Whelpley, 111 NY 239, 18 NE 874. Three witnesses: rule that legatee who is also subscribing witness loses his legacy but must testify, is relaxed where there are three subscribing witnesses and the will is proved by the testimony of the other two. Caw v. Robertson, 5 NY 125. Resident subscribing witness who was not under disability must be examined. Hohn's Est., 180 Mis 384, 40 NYS 2d 237. Re Third subscribing witness: his testimony is not essential unless compelled to testify by action of contesting parties. Re Owen, 48 AD 507, 62 NYS 919. WITNESSES WHO MAY BE EXAMINED Executor may be examined. Re Huestis, 23 WkD 224. : Interested by reason of being party to proceeding and because entitled to commissions: examinable. Re Wilson, 103 NY 374, 8 NE 731; Re Folts, 71 Hun 492, 24 NYS 1052. Legatee, who has released his interest; examinable. Loder, 111 NY 239. Renouncing legacy; examinable. Re Barrien, 12 NYS 585 aff. 5 NYS 37. Non-subscribing witnesses: examinable if subscribing witnesses fail to prove will. Butler v. Benson, 1 Barb 526; Whitefield, 19 WkD 386. Reeve Absence of incompetence: testimony of witnesses other than subscribing witnesses may be added where the subscribing witnesses are dead, nonresident or insane. r. Crosby, 3 Redf 74. |