The two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.
The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads in payment of money ($500) she gave my sister Mae and for which I thank her. Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.
The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will. Matter of Ross’ Will, 177 App.Div. 719, 164 N.Y.S. 884.
Legacy item 7 is apparently in the sum of $2,000. A cursory examination of it discloses however that the figure 2 apparently has been superimposed over the figure 1, a portion of which figure is still visible beneath the lower loop of the figure 2, which lower loop is darker in shade than the upper loop. While there is no proof, however, that the propounded instrument was in the possession of the legatee who would benefit by such change, the burden is upon the party who seeks to derive an advantage from an alteration in a will to adduce some evidence from which it may be inferred that the alteration was made before the will was executed. Matter of Ross’ Will, supra. This the legatee has failed to do, wherefore the Court holds that this legacy was altered from the sum of $1,000 to $2,000 subsequent to the execution of the will.
The specific bequest to Anne Hankinson and Marguerite McConnell at the bottom of page 4, and that portion of the bequest to Margaret Wahlstrom on page 5, through which interlineations appear in the phrase and radio in small foyer hall which phrase is followed by the same phrase in pencil; and that portion of the bequest to Rose Beatty on page 5, limited to the words towels and linens, and that portion of the bequest to MM, at the bottom of page 5 and the top of page 6, limited to the words floor lamp–lamp on large table in living room, lamp on nest of tables twin lamps in living’ appear in different color ink from the rest of the writing on those sheets, and from their position it is evident that such changes and additions were apparently afterthoughts of the decedent and therefore the Court finds that they were made subsequent to the execution of the will.
The propounded instrument will be admitted to probate with all of that portion below the witnesses’ signatures on the last page eliminated, as well as the specific bequests which have been determined to have been made subsequent to execution; and, in addition, the said will shall set forth the amounts of the money legacies in the sums determined to have been originally given. The decree to be submitted will incorporate the instrument as admitted to probate.
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