| Matter of Halpern |
| 2010 NY Slip Op 06391 [76 AD3d 429] |
| August 17, 2010 |
| Appellate Division, First Department |
| In the Matter of the Estate of Seymour Halpern, Deceased.Adrienne Halpern et al., Respondents; Elizabeth Halpern,Objectant-Appellant. |
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Decree,[FN1]Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about June 23,2008, which, inter alia, admitted the document dated September 12, 1958 to probate as the lastwill and testament of Seymour Halpern, also known as Seymour Lionel Halpern, affirmed,without costs.
The decedent, Seymour Halpern, a physician, married his first wife Anafred in 1953. OnSeptember 12, 1958, he purportedly executed a document that petitioners, his daughters, seek toprobate as his will. Anafred died in 1981, and in 1988, the decedent married his second wifeElizabeth (the objectant). On June 7, 2006, Seymour died, leaving an estate valued atapproximately $28 million. At the time of his death, his family believed he died intestate, buttwo months after her husband's death, Elizabeth found an almost 50-year-old four-pagedocument in their home. The decedent's children now seek to have that document probated as hiswill.
Three witnesses signed the will. Harry Grayer, Esq., Barbara Sammons, and Mary AnnSchuder. Grayer was the decedent's attorney. There is an invoice from Grayer in the record,dated September 12, 1958, the day the will was executed, charging Seymour for "professionalservices rendered" "Re: Preparation of Will, etc." The two other witnesses, Sammons andSchuder, worked in the decedent's medical office at the time the will was signed. All three of thewitnesses' signatures appear at the end of the will, underneath an attestation clause, whichrecites: "The above instrument was on the 12th day of September, 1958 in [*2]the Borough of Manhattan, County, City and State of New York,subscribed by SEYMOUR LIONEL HALPERN, the Testator above named in the presence of usand of each of us, and at the same time and place, the above instrument was published anddeclared by the said Testator to be his Last Will and Testament and thereupon each of us at therequest of the said Testator and in his presence and in the presence of each other have hereuntosigned our names as witnesses thereto, and wrote the places of our respective residencesalongside our names." The will made a number of minor bequests to relatives and charitableorganizations. With the exception of those bequests, Anafred and Adrienne, Seymour's eldestdaughter, and his only child born before 1958, were the sole beneficiaries under the will, with aprovision made for any after-born children. Seymour and Anafred subsequently had a seconddaughter and a son, Vivienne and Ronald.
In the fall of 2006, Adrienne and Vivienne (the proponents) submitted a petition foradmission of the will to probate. On June 29, 2007, Ms. Sammons, the only surviving attestingwitness, was deposed. The deposition lasted 45 minutes. Ms. Sammons, who was 69 years old,testified that she recognized her signature at the end of the will and that she remembered livingat the address listed next to her signature in 1958. However, she also testified, more than 15times, in response to a variety of questions, that she had no memory of the events of September12, 1958, because they occurred 50 years before the deposition. Handwriting expertsauthenticated decedent's signature at the end of the will, as well as that of his attorney, Mr.Grayer.
On July 17, 2007, Elizabeth filed objections to probate, asserting that the will was not dulyexecuted. The proponents moved for summary judgment to admit the will to probate, and theobjectant cross-moved for summary judgment as well. The court held a hearing and concludedthat there was no material issue of fact as to the due execution of the will. The objectant appealsfrom the decree admitting the will to probate.
Before admitting a will to probate, Surrogate's Court must be satisfied that the execution ofthe will was valid (see SCPA 1408; Matter of Pirozzi, 238 AD2d 833, 834[1997]). The proponent has the burden of demonstrating, by a preponderance of the evidence,that a purported will was duly executed (id.; Matter of Falk, 47 AD3d 21, 25 [2007], lv denied 10NY3d 702 [2008]). If an attorney-drafter supervises the execution of a will, there is apresumption of regularity that the will was properly executed (see Matter of Moskoff, 41 AD3d481, 482 [2007]; Matter ofTuccio, 38 AD3d 791, 791 [2007], lv denied 9 NY3d 802 [2007]; Matter of James, 17 AD3d 366,367 [2005]; Matter of Seelig, 302 AD2d 721, 722 [2003]). In addition, a valid attestationclause raises a presumption of a will's validity, although it is nonetheless incumbent uponSurrogate's Court to examine all of the circumstances surrounding the execution of the documentin order to ascertain its validity (see Falk, 47 AD3d at 26, citing, inter alia, Matter ofCollins, 60 NY2d 466, 471 [1983]). The determination whether to dismiss objections andadmit a will to probate is within the discretion of Surrogate's Court, and its determination willnot be overturned absent a showing of an abuse thereof (Matter of Colverd, 52 AD3d 971, 972 [2008]).
In 1958, when the instant will was purportedly executed, Decedent Estate Law § 21governed. That section provided:
"Every last will and testament of real or personal property, or both, shall be executed and[*3]attested in the following manner:
"1. It shall be subscribed by the testator at the end of the will.
"2. Such subscription shall be made by the testator in the presence of each of the attestingwitnesses, or shall be acknowledged by him, to have been so made, to each of the attestingwitnesses.
"3. The testator, at the time of making such subscription, or at the time of acknowledging thesame, shall declare the instrument so subscribed, to be his last will and testament.
"4. There shall be at least two attesting witnesses, each of whom shall sign his name as awitness, at the end of the will, at the request of the testator."
Here, Dr. Halpern signed the will at the end of the document (Decedent Estate Law§ 21 [1]). An attestation clause states that he did so in the presence of three attestingwitnesses (Decedent Estate Law § 21 [2]). This clause also states that Dr. Halperndeclared the document to be his last will and testament (Decedent Estate Law § 21 [3]).Mr. Grayer, the decedent's lawyer, prepared the will, served as an attesting witness, and billedthe decedent, on the date of the execution of the instrument, for services rendered with respect toits "Preparation . . . etc." (see Seelig, 302 AD2d at 722 [attorney's presenceat signing of will constituted prima facie evidence of will's due execution]). The cover page ofthe will also contained Mr. Grayer's letterhead. Ms. Sammons identified her signature andaddress on the document, and a handwriting expert verified the signatures of the decedent andMr. Grayer (Decedent Estate Law § 21 [4]).
Thus, Surrogate's Court correctly concluded that the proponents demonstrated a prima facieshowing of due execution of the will, as it contained a valid attestation clause (see Matter ofCollins, 60 NY2d 466, 471 [1983]; Falk, 47 AD3d at 26), and was executed underan attorney's supervision (Matter ofLeach, 3 AD3d 763, 764 [2004]; Matter of Seelig, supra), despite thefact that the sole surviving witness, Ms. Sammons, testified that she did not remember the will'sexecution (see Collins, 60 NY2d at 470-472; Matter of Korn, 25 AD3d 379, 379 [2006]; Matter of James, 17 AD3d 366,367 [2005]).
Upon the presumption of due execution, the burden then shifted to the objectant to produceevidentiary proof in admissible form to rebut the presumption and raise a material issue of fact(Seelig, 302 AD2d at 722).
It is the dissent's position that a trier of fact could reasonably infer, from the sole survivingwitness's deposition testimony, that the formalities set forth in the attestation clause had nevertaken place. However, the excerpts from her EBT relied on by the dissent, read in context, canalso be interpreted as testifying that she could not confirm the statements made in the attestationclause because she didn't remember an event almost 50 years earlier, when she wasapproximately 20 years old.
The dissent relies on Lewis v Lewis (11 NY 220 [1854]) and Matter ofPulvermacher (305 NY 378 [1953]) in support of its contention that the requisite formalitieswere not followed here. Both Lewis and Pulvermacher are distinguishable ontheir facts. In Lewis, the proponents sought to probate a will less than two yearsafter it was drafted. Both attesting witnesses in [*4]Lewis were deposed. The first testified that the decedenthanded him a folded paper and asked him to sign his name and address. This witness did not seethe body of the document,[FN2] and the decedent incorrectly declared it to be his "free will and deed" (Lewis at 222).The other subscribing witness also testified that the document was folded; he did not know whathe was signing when he placed his signature on the purported will; and that he did not rememberthe decedent signing the document in his presence (id. at 222). Upon this record, theCourt of Appeals concluded that because the decedent did not sign the document in the presenceof the witnesses, the document was folded in such a manner that the witnesses could not see thesubscription, and the decedent's declaration as to a "free will and deed" was incorrect, there wasan insufficient basis to satisfy the statutory requirements (id. at 225).
In this case, by contrast to Lewis, almost five decades (not two years) had passedbetween the purported execution of the will and its presentation for probate. Here, there was onlyone living witness to be examined, and the Surrogate found that her testimony was insufficient torebut the presumption of due execution because, she could not "recall the circumstancessurrounding execution" of the will. The Court of Appeals' holding in Lewis was based onentirely different facts and does not require a different result.
Likewise, in Pulvermacher, three years before the testator's death, he asked a guardand a vault attendant at his bank to witness his signature at the bottom of a folded sheet of paper.Both witnesses were available to testify in the probate proceedings, and they were consistent intheir testimony that the decedent did not declare the document to be a will. The depositiontestimony indicated that while both signed their names next to the decedent's signature, neitherknew what they were signing, and the document did not have an attestation clause stating thatthe publication requirement had been complied with. The Court of Appeals denied probate forlack of proper publication.
Here, by contrast to Pulvermacher, there was a five decade time lapse between theexecution and attempted probate of the will. There was only one living witness to the will, whichwas drafted by the decedent's attorney, who also signed as a witness to the execution, and thewill contained an attestation clause.
In the circumstances, given all of the evidence submitted to the Surrogate—theobjectant's delivery of the will, which she found in the decedent's closet; the invoice from theattorney-drafter, dated the same day the will was purportedly executed, September 12, 1958; thesignature of the supervising attorney at the end of the will (authenticated by a handwritingexpert); the admission of the attesting witness that she too signed the will and that her address atthe time was correctly set forth next to her signature; and the authentication of the decedent andthe attorney's signatures at the end of the will by a handwriting expert—it was not anabuse of the court's discretion to have granted the proponent's motion for summary judgmentadmitting the subject will to probate. Concur—Gonzalez, P.J., Saxe, Acosta andRomÁn, JJ.
McGuire, J., dissents in a memorandum as [*5]follows: Themajority holds that the deposition testimony of Barbara Sammons does not raise a material issueof fact on the question of whether the will was duly executed. The majority so holds because itconcludes that the deposition testimony given by Ms. Sammons that I quote below, "read incontext, can also be interpreted as stating that she could not confirm the statements made in theattestation clause because she didn't remember an event almost 50 years earlier." Ms. Sammons,however, certainly did not testify merely that she could not remember those circumstances andher testimony certainly cannot as a matter of law only be so interpreted. Rather, viewing hertestimony as a whole, the trier of fact reasonably could conclude that an execution ceremony inaccordance with the law had never taken place. For that reason, I respectfully dissent.
Ms. Sammons was 69 years old at the time of her deposition, almost 49 years after the datethe will allegedly was executed and attested to in accordance with the then-applicable law,Decedent Estate Law § 21. She testified that she began working for the decedent, Dr.Seymour Halpern, in 1956, when she was 19 years old, and worked for him as a "medicalassistant" until she was 21. A woman named Mary Ann also worked for the decedent. Thedecedent's practice was in internal medicine and Ms. Sammons's duties included secretarialwork, such as answering phones, sending out bills, handling correspondence with other doctors,and assisting with examinations.
When questioned by counsel for the proponents of the will, two of the decedent's threechildren, Ms. Sammons testified that she recognized what appeared to be her signature on thewill. Apart from noting the passage of nearly 50 years, Ms. Sammons had no reason to believethat the signature was not hers. With respect to the address next to her signature, Ms. Sammonstestified that she did live at that address between 1956 and 1958 and recalled living there inSeptember of 1958 when the will was allegedly signed. Shown the names of the other twosubscribing witnesses, Ms. Sammons testified that one of them, Mary Ann Schuder, was theMary Ann who was her coworker; she did not know anyone named Harry Grayer. Asked if sheever had occasion to sign any documents on behalf of the decedent or in his presence, Ms.Sammons answered, "Not that I remember." Asked if it was possible she had, she answered, "Idon't know." Ms. Sammons did not recall signing the will or anything about signing thedocument; nor did she recall ever signing a document in the presence of the decedent, Ms.Schuder and an attorney. Asked if it was possible she had done so in 1958, she answered, "I don'tremember signing one." When she was immediately asked the same question, she responded,"Anything is possible 50 years ago." Asked yet again whether it was possible that she had signedthe will in the presence of the two people whose signatures appeared below hers, Ms. Sammonsanswered, "I guess it could be possible."
Ms. Sammons was then examined by counsel for the objectant, the decedent's second wife.She testified that correspondence coming out of the decedent's office did not require hersignature, and that she did not sign any documents while in the office. Asked if "it would beunique and very much out of the ordinary if [she] did sign any document while in the office,"Ms. Sammons answered, "That's true." Ms. Sammons also testified that she did not remember thedecedent ever mentioning to her that he had a will, and that she would no longer recognize his[*6]signature. At that point, testimony that is critical to the properresolution of this appeal was elicited:
"Q: At any time, did Dr. Halpern announce or declare to you that he had signed his last willand testament and then asked you to sign as a witness?
"[proponents' counsel]: Objection.
"A: No.
"Q: If Dr. Halpern had done that, meaning said I am declaring this document to be my lastwill and testament and, Barbara, I would like you to sign it for me, do you feel that is somethingyou would remember?
"A: Yes, I probably would.
"Q: Why do you think you would remember that?
"A: It's very specific. I can't imagine him doing that. As I said, he was very controlling andvery private and very . . . ."
This unequivocal "No," in response to a question that was more specific than thosepreviously asked by counsel for the proponents, was not negated by Ms. Sammons's latertestimony. Nor did her later testimony undermine her explanation for why she "probably" wouldremember such a declaration and request from the decedent. To the contrary, Ms. Sammons'stestimony that the decedent never stated to her that he had signed his will before asking her tosign it as a witness was reinforced by the testimony she went on to give in response to additional,similarly specific questions posed by counsel for the objectant:
"Q: Now, that paragraph right above your signature says that you, Mary Ann Schuder, theattorney Harry Grayer and Dr. Halpern all executed this Will in each other's presence. In otherwords, you're in the same room at the same time. Did that ever happen?
"A: I don't remember it happening. Is that the correct answer?
"Q: The correct answer is what you remember.
"A: I don't remember it happening.
"Q: Was there ever any occasion where you signed any document with a lawyer and Dr.Halpern in the same room at the same time?
"A: Not that I remember.
"Q: Can you say definitively that it did or didn't happen?
"A: It didn't happen.
"Q: Can you feel confident when you say that?[*7]
"A: I don't remember it happening. So yes, I do feelconfident when I say that.
"Q: You feel confident when you say that it did not occur; is that right?
"A: Right.
"Q: Now, we're presuming under the—strike that.
"A: How do you expect people to remember what happened 50 years ago? This is what. . .
"Q: I understand, I understand.
"[proponents' counsel]: Let her finish.
"A: I can't remember what happened ten years ago. Sorry.
"Q: Well, you do. You remember plenty about your college. So your signature appears on[the will], correct?
"A: It is.
"Q: Did anyone, not just Dr. Halpern, but did anyone tell you that the document you weresigning was anybody's will?
"[proponent's counsel]: Objection.
"A: No."
Ms. Sammons also testified that if the decedent had put a document in front of her and toldher to sign it, she "probably" would have signed it because he "was controlling, manipulative."As a 19 or 20 year old, she would not have felt comfortable asking the decedent what he wasasking her to sign. She "didn't think that way back then."
Ms. Sammons was questioned anew by the proponents' counsel. Asked if it was possible thatthere were other people in the room when she signed the will, she answered "I don't remember,"but acknowledged it was possible. Similarly, she did not recall anyone saying anything to herwhen she signed the will, but acknowledged it was possible someone had. However, when shewas asked more specifically if it was possible that someone told her the document was a will, shefirst answered "No" before stating, "Anything is possible 50 years ago."
In pertinent part, the formal requirements for the execution and attestation of a will, as setforth in EPTL 3-2.1 (a), are that: "[t]he signature of the testator shall be affixed to the will in thepresence of each of the attesting witnesses, or shall be acknowledged by the testator to each ofthem to have been affixed by him or by his direction"; "[t]he testator may either sign in the [*8]presence of, or acknowledge his signature to each attesting witnessseparately"; and "[t]he testator shall, at some time during the ceremony or ceremonies ofexecution and attestation, declare to each of the attesting witnesses that the instrument to whichhis signature has been affixed is his will." These formalities have been required to prove dueexecution of a will for more than 150 years (see Lewis v Lewis, 11 NY 220, 223 [1854]).
"Surrogate's Court, before admitting a will to probate, must be satisfied that the execution ofthe will was valid, even if no interested party files an objection to its validity, and the burden ofdemonstrating that the purported will was duly executed lies squarely with the proponent, whomust prove such by a preponderance of the evidence" (Matter of Falk, 47 AD3d 21, 26 [2007] [citations omitted], lvdenied 10 NY3d 702 [2008]). Although the attestation clause "raises a presumption ofvalidity . . . it is incumbent upon Surrogate's Court to examine all of thecircumstances attendant to the execution of the document in order to ascertain its validity"(id.).
"The publication requirement mandates that decedent make [his] intention known that thedocument is to serve as [his] will, and absent such declaration, the instrument should not beadmitted to probate" (id.; see Lewis, supra). Although due executionmay be shown by evidence other than the testimony of the attesting witnesses, "[i]t cannothowever be presumed in opposition to positive testimony, merely upon the ground that theattestation clause is in due form and states that all things were done which are required to bedone to make the instrument valid as a will" (Lewis, 11 NY at 224; see also Matter ofPirozzi, 238 AD2d 833, 834 [1997], quoting Matter of Roberts, 215 AD2d 666[1995] ["Publication can be through words or actions, but something must occur to show thatthere had been 'a meeting of the minds between the testator and the attesting witnesses that theinstrument they were being asked to sign as witnesses was testamentary in character' "]).
Although it is true that "a presumption of regularity is raised that the will was properlyexecuted" when an attorney drafts it and supervises its execution (Matter of Leach, 3 AD3d 763,764 [2004]), and that "this presumption cannot be overcome merely because the attestingwitnesses are not able to specifically recall the will execution" (id. at 765), "[n]ot beingable to remember the details of the execution ceremony is not the same as testifying that theformalities described in the attestation clause did not occur" (id. [internal quotationmarks omitted]). Indeed, where there is no evidence that an attorney supervised the will'sexecution and an attesting witness specifically testifies that the statutory formalities did notoccur, courts have repeatedly held that the will is not valid (see e.g. Lewis,supra; Matter of Mackay, 110 NY 611 [1888]; Matter of Pulvermacher, 305NY 378 [1953]; Matter of Falk, 47AD3d 21 [2007], supra). That is precisely what occurred in Lewis v Lewis(11 NY 220 [1854]), where, according to the factual summary preceding the Court's opinion, oneof the attesting witnesses testified that he and the other attesting witness worked in thedeceased's store at the time the will was signed, he signed his name at the end of the attestationclause at the request of the deceased but the deceased had the paper "so folded or placed uponthe desk that he saw no part of the contents, and that neither the same or any part of it was readto him; that he did not see the [deceased] sign it, nor did he see [the deceased's] signature to itwhen he signed as a witness" (id. at 222).
The attesting witness further testified that after requesting that he and his coworker sign thedocument and add their addresses, the deceased stated, " 'I declare the within to be my free willand deed' " (id. at 225). He and his coworker then signed the document. He did not knowwith [*9]certainty that the document was a will although hebelieved that it may have been one because "the deceased had that morning sent out andprocured a blank will" (id. at 222). The other attesting witness testified that: "he signedhis name to the alleged will in the office of the deceased; that he was unable to say whatoccurred on that occasion, but that according to his recollection he signed it at the request of thedeceased; that he had no recollection that the deceased said any thing else to him at the time herequested him to sign it, unless it was 'to see him sign the document;' that he did not recollectthat the deceased signed the instrument in his presence; that he had no recollection that. . . the other witness[ ] was present when he signed . . . . On hiscross-examination he further testified that according to his recollection he did not read, nor wasany part of the instrument read to him when he signed it, and that he had no recollection that hethen knew what the paper was" (id.).
The Court of Appeals relied on this testimony from the attesting witnesses in finding that theevidence warranted "the conclusion that the instrument was not subscribed by the decedent in thepresence of the witnesses; that the paper was so folded that the witnesses did not see thesubscription, and that the only declaration or acknowledgment of the party was in substance, 'Ideclare the within to be my free will and deed,' " which the Court found insufficient to complywith the statutory requirements (id. at 225). Specifically, the Court stated: "[I]t mightprobably be inferred that the deceased at the time of requesting the witnesses to subscribe assuch, had himself signed the instrument and intended to comply with the statute and make a validwill. But that is not sufficient. The formalities prescribed by statute must be observed, and theattesting witnesses must be informed at the time and by the testator, or in his presence and withhis assent, and have a knowledge of all the facts necessary to a due execution and publication ofthe will, and to which they are called to attest. If the party does not subscribe in their presence,then the signature must be shown to them and identified and recognized by the party, and insome apt and proper manner acknowledged by him as his signature. The statute is explicit, andwill not be satisfied with any thing short of a substantial compliance with its terms" (id.).
Almost a century later, the Court of Appeals reiterated this requirement that the "definiteformalities" of the statute, one of them being publication of the document as a will, be compliedwith in order for a will to be admitted to probate (Matter of Pulvermacher, 305 NY 378,383 [1953], supra). In Pulvermacher, the court stated that "[p]ublication. . . demands, not only that the testator have knowledge of the character of theinstrument, but, equally important, that he share that knowledge with his witnesses" (id.).The court explained that "[w]hile no particular form of words is necessary, the courts have heldthe minimum statutory prescription to be some kind of communication that the instrument,which they are being asked to sign, is testamentary in [*10]character" (id. [internal quotation marks omitted]). Itfurther explained: "The reason for requiring publication is twofold: first, to furnish proof that thetestator is under no misapprehension, whether by malicious contrivance or otherwise, as to thenature or identity of the instrument, and second, to impress upon the witnesses the fact that, sincethe document is a will, they are expected to remember what occurred at its execution and beready to vouch for its validity in court" (id. [internal quotation marks omitted]).
The majority attempts to distinguish Lewis and Pulvermacher from this caseon the ground that a longer period of time passed between the execution of the will and itssubmission to the court for probate. But the number of years that passed by is irrelevant to thequestion of whether the will was properly executed in accordance with the statutoryrequirements.
Summary judgment in a contested probate proceeding is rare (Matter of Colverd, 52 AD3d 971,972 [2008]), and should only be granted where the petitioner sufficiently establishes a primafacie case for probate and the respondent fails to raise any genuine issue of fact (id.).Although the majority relies on both the attestation clause and attorney-supervisionpresumptions, neither is applicable. Ms. Sammons's testimony raises material questions of factwith respect to whether the decedent declared the document she signed to be his will, whetherthe attorney-drafter supervised the execution, and whether any will ceremony ever had occurred.While Ms. Sammons acknowledged that she could not be certain given the passage of time, shetestified both that there was never an occasion in which she signed a document in the presence ofa lawyer and the decedent and that she was confident that such an event had not occurred.
Moreover, Ms. Sammons provided specific and credible reasons why she "probably" wouldremember a will ceremony if one had occurred. As she explained, she thought she wouldremember if the decedent had asked her to sign a document that he had declared to be his lastwill and testament, because "it's very specific" and she could not "imagine him doing that" as hewas "very controlling and very private." Similarly, she gave a specific and credible explanationfor why her signature nonetheless might appear on the will underneath the attestation: because ofher youth and his "controlling, manipulative nature," she "probably" would have signed adocument if he put it in front of her and told her to sign it. Regardless of what may or may not bethe case today, the majority cannot dismiss as implausible the notion that 50 years ago a maleemployer might be so "very controlling and very private" with respect to a young femaleemployee as to direct her to sign a document and keep her in the dark about its nature.
Furthermore, that a will ceremony is an unusual event is a matter of common experience. Forthis reason, a trier of fact could conclude that, even 50 years later, a person might well rememberparticipating in it. As the Court of Appeals explained, embedding the will ceremony in thememory of the attesting witnesses is one of the very reasons for the statutory requirements(Pulvermacher, 305 NY at 383). And if a trier of fact were impressed by the demeanorand overall mental state of the person, that conclusion would be all the more reasonable.Obviously, the majority knows nothing about Ms. Sammons's demeanor and has no basis forbeing unimpressed by her overall mental state. Nonetheless, the majority concludes that no trierof fact reasonably could conclude that Ms. Sammons was correct that she "probably would"remember a will signing ceremony if it had occurred. Although this startling conclusion is leftunstated in the majority's writing, it nonetheless is implicit in the majority's ruling.[*11]
The key to this appeal is that the inference that Ms.Sammons would have remembered a will ceremony is one to which the objectant, as theopponent of the motion for summary judgment, is entitled (see Consolidated Edison Co. ofN.Y. v Jet Asphalt Corp., 132 AD2d 296, 300 [1987]). I agree that Ms. Sammons'stestimony must be read "in context." But that banality cannot be a license to disregard specifictestimony bearing on the crucial subjects of the witness's testimony. By affirming, the majorityvitiates the principle that the court's function on a motion for summary judgment is issue finding,not issue determination (Rodriguez v Parkchester S. Condominium, 178 AD2d 231, 232[1991]). Although the majority does not acknowledge that it is weighing the evidence andfinding that the better conclusion is that the decedent executed the will in accordance with thestatutory requirements, that is precisely what the majority does. Accordingly, I would reverse thegrant of summary judgment.
Footnote 1: The decree refers to an earlierorder which granted petitioners' motion for summary judgment and denied the cross motion forsummary judgment of the objectant.
Footnote 2: See also Matter ofMackay (110 NY 611 [1888]), cited by the dissent. In Mackay, as in Lewis,the attesting witness stated that the decedent handed him a folded piece of paper to sign and thathe did not see the decedent's signature. The court refused to admit the will to probate.