30 N.Y.S. 979 | N.Y. Sup. Ct. | 1894
James M. Earley recovered a judgment in the supreme court on the 24th day of August, 1876, against the defendant, for the sum of $15,068.49. On the 16th day of February, 1890, the said James M. Earley died, leaving a last will and testamént, which was executed on the 7th day of December, 1889. Executors were appointed by the will, proceedings for the probate of which were pending at the time of the making of the motion. During the pend-ency of said proceeding, and on or about the 29th day of May, 1891, the appellant was appointed temporary administrator of said estate. During his last sickness, in anticipation of death, said James M. Earley, in the presence of Sister Catharine Monaghan, wrote and signed a paper of which the following is a copy:
“J. M. Barley, Rector. Hornellsville, N. Y. February 10, 1890. I, the undersigned, do hereby discharge the judgment I hold against St. Patrick’s Church Society o£ Rochester, N. Y., and leave it entirely to the will and honesty of the officials of said church society to pay, to the institutions named in my will and testament, the sums named.
“[Signed] James M. Barley."
The deceased, after signing said instrument, placed it in a sealed envelope, and wrote thereon: “To Sister Catharine; to be opened after my death. J. M. Earley,”—and placed the instrument in a drawer in his secretary. Two days before his death he pointed to the secretary, and stated to Sister Catharine Monaghan: “There is a letter in that drawer addressed to you. After my death, see to it, or attend to it.” After his death, and before the funeral, Sister Catharine informed the Rev. M. J. Keene, one of the persons named as executors, that there was a letter in the drawer for her, .and she wished it. He thereupon delivered the envelope, unopened, to her, and thereafter, and on the day of the funeral of said Earley, she delivered the same to the Rev. M. Y. Gleason. She did not see the envelope or paper again until the 31st day of January, "1891, on which day she signed her name to the instrument as a subscribing witness, and on the same day appeared before a notary public, and, after being duly sworn, deposed that she was present, and saw the said James M. Earley sign and deliver the instrument for his act and deed, and acknowledge the execution thereof, and that thereupon she became a subscribing witness thereto. By the
DWIGHT, P. J., concurs. BRADLEY, J., concurs in result.