                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   517659
________________________________

In the Matter of the Estate of
   SYLVIA SHAPIRO, Deceased.

SHELDON SHAPIRO, as Executor
   of the Estate of SYLVIA                  MEMORANDUM AND ORDER
   SHAPIRO, Deceased,
                    Respondent;

GAIL BASS,
                    Appellant.
________________________________


Calendar Date:   September 5, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


      Drew Davidoff & Edwards, LLP, Monticello (Brian T. Edwards
of counsel), for appellant.

      Jacobowitz & Gubits, LLP, Walden (Peter R. Eriksen of
counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a decree of the Surrogate's Court of Sullivan
County (McGuire, S.), entered December 21, 2012, which, among
other things, admitted to probate an instrument purporting to be
the last will and testament of decedent.

      This will dispute has been before this Court on two prior
occasions (Matter of Shapiro, 100 AD3d 1242 [2012]; Matter of
Shapiro, 65 AD3d 790 [2009]). In January 2012, petitioner,
decedent's son, filed an amended petition seeking to probate a
1994 will naming him as executor and sole residuary beneficiary.
                              -2-                517659

Respondent, decedent's daughter, filed objections contending that
the will was not duly executed (see EPTL 3-2.1). Following a
trial, a jury returned a verdict that the will was duly executed,
and Surrogate's Court granted letters testamentary to petitioner.
Respondent has appealed, raising two challenges to the court's
instructions to the jury.

      First, respondent asserts that Surrogate's Court erred in
instructing the jury that it could presume the will was duly
executed if it found that the witnesses signed their names after
the attestation clause. Since neither of the two witnesses who
testified could recall the specific circumstances of the will
execution ceremony, and no self-attesting affidavits were
submitted, respondent maintains that the charge was unwarranted.
We disagree. As we previously observed, "[i]f the attestation
clause is full and the signatures genuine and the circumstances
corroborative of due execution, and no evidence disproving a
compliance in any particular, the presumption may be lawfully
indulged that all the provisions of the statute were complied
with, although the witnesses are unable to recollect the
execution of what took place at the time" (Matter of Shapiro, 65
AD3d at 791 [internal quotation marks and citations omitted]).
The attestation clause here states that decedent signed the will
in the presence of the attesting witness, declared the document
to be her last will and testament, and the witnesses signed the
clause at decedent's request and in her presence, in accord with
the statutory criteria (see EPTL 3-2.1). Moreover, both
attesting witnesses confirmed that they were present during the
ceremony, that they signed the attestation clause and that
decedent appeared of sound mind. One witness testified that he
observed decedent sign the will, while the other witness, who was
a notary public, testified that she would not have served as a
witness unless decedent signed the will in her presence. In this
context, Surrogate's Court properly charged the jury regarding
the presumption of due execution of the will (compare Matter of
Collins, 60 NY2d 466, 471 [1983]; Matter of Ruso, 212 AD2d 846,
847 [1995]). Respondent's contention this Court's decision in
Matter of Clapper (279 AD2d 730 [2001]) compels a contrary
finding is not persuasive. In Clapper, we recognized that a
self-executing affidavit "creates a presumption that the will was
duly executed and constitutes prima facie evidence of the facts
                              -3-                517659

therein attested to by the witnesses" (id. at 731). That being
said, the absence of a self-executing affidavit does not prevent
the presumption from arising, where, as here, the attestation
clause is complete and the circumstances corroborate due
execution (see Matter of Collins, 60 NY2d at 471).


      Next, respondent maintains that Surrogate's Court erred in
instructing the jury that a presumption arises that a will has
been properly executed where the execution was supervised by an
attorney who drafted the document (see Matter of Buchting, 111
AD3d 1114, 1115-1116 [2013]; Matter of Scaccia, 66 AD3d 1247,
1250-1251 [2009]; Matter of Pilon, 9 AD3d 771, 772 [2004]; Matter
of Leach, 3 AD3d 763, 764 [2004]; PJI 7:45.2). This issue
centers on whether the individual who purportedly drafted the
will and was present at the ceremony, Edward Cahmi, was in fact
an attorney. There is no dispute that Cahmi was present at the
ceremony. One attesting witness testified that she knew Cahmi to
be an attorney based on his representations to her. The other
witness knew Cahmi to be an attorney from the Village of Dobbs
Ferry, Westchester County. Petitioner's wife also testified that
she knew Cahmi was an attorney. While this testimony was
hearsay, as there was no objection, the jury was free to consider
it (see Matter of MacDonald, 40 NY2d 995, 996 [1976]; Matter of
Findlay, 253 NY 1, 11 [1930]). Moreover, there was testimony
that Cahmi prepared a will for both petitioner and his wife and
that petitioner's will was signed after decedent's will was
completed. This testimony supports the charge, which clearly
emphasized that the presumption applied only if the jury
determined that Cahmi was a qualified attorney who supervised the
execution of the will. As such, we find no error in the charge
given.

     Stein, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.
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ORDERED that the decree is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
