2 Lans. 41 | N.Y. Sup. Ct. | 1870
By the Court
The point made by the appellant is, that the testator did not, at the time he subscribed the instrument, declare the instrument so subscribed to be his last will and testament, as the statute requires (2 R. S., 63, § 40, sub. 3). Lewis J. Peckham, one of the subscribing witnesses, after stating that he went to the house of the deceased in company with the other subscribing witness, says the deceased was at that time sick and not able to be out of his house. He states who were in the room. He thinks Mr. Swartout went, at the request of the deceased, and brought the paper (the will) from a trunk in the room. Bagley asked Swartout where the pen and ink and that paper were. Thereupon he (Swartout) got it and laid the pen and ink and the paper on the table. The deceased then sat down and signed the paper. The deceased then asked witness if he would witness that paper. The witness then sat down and
The witness did not hear the words “ will and testament ” used on that occasion. He had been told before, that the deceased wanted him to come and sign a will. Beyond that fact he had no knowledge that the instrument was a will.
The requirements of the statute are clear and specific. “ The testator,, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.” In the present case there was r> o such declaration ; there was no publication of the instrument as a will and testament. In Brinherhoof v. Remsen (8 Paige, 488), Chancellor Walworth examined the law in relation to the execution and proof of
In Brinkerhoof v. Remsen, supra, and in Lewis v. Lewis (1 Kern., 220), the probate of the will was refused, for the reason that the proof of execution and publication was not such as the statute requires. The order of the surrogate admitting the will to probate, must be reversed, and an order entered for the settlement of issues, to be tried by a jury. The question of costs is reserved to the final hearing or judgment.
Order reversed.