Gamble v. Gamble, 39 Barb. 373

Gamble v. Gamble

39 Barb. 373 | N.Y. Sup. Ct. | 1863

*379 By the Court,

Welles, J.

It is objected on the part of the appellant, that the will of David Gamble was not executed according to the statute. The subscribing witnesses were Philip Woodruff and Michael Kelley. The former died after the will was executed, and before the death of the testator. Kelley was sworn and examined as a witness before the surrogate, and testified that he saw the testator sign the will. That he executed it in the presence of the witness. That the testator took up the will before he signed it and turned to Woodruff and called him by name, and then turned to the witness and called him by name and said, “ That is my last will and testament.” That the testator then took a pen and wrote his name to it. That Woodruff then took the paper from the table and subscribed his name to it, and handed it to the witness, who signed his name to it. That when the witness commenced writing his name, the testator told him he must name the town and county he lived in. The witness then wrote his name and place of residence, and gave the paper back to Woodruff. That at this time the two subscribing witnesses and the testator, David Gamble, were all in the room together. Robert Gamble, a son of the testator, testified that he was in the room when the will was executed. He says, “ I was sitting about five feet from the table where father, Mr. Woodruff and Mr. Kelley were sitting. My father signed it and handed it to Mr. Woodruff, and he signed it and handed it to Mr. Kelley, who also signed it. My father held the will up to the men and said, ‘ This is my last will and testament / and when he said this he handed it to Mr. Woodruff. Mr. Woodruff signed his name and handed it to Mr. Kelley. Mr. Kelley wrote his name. Mr. Kelley said, ‘ I suppose this is all you want of me/ and Mr. Woodruff said ‘Yes.’”

On cross-examination this witness testified that he could not say whether the testator declared the paper to be his last will and testament before or after he signed his name. That he did not watch to see whether the will was properly exe-. *380outed. That his attention had not been called to the precise order in which the business was done until the day of his examination. The foregoing is the substance of the evidence of what occurred on the occasion of the execution and publication of the will. The will was drawn by Woodruff, one of the witnesses to its execution. It appeared that before the will was drawn the testator had .designated Woodruff and Kelley as such witnesses. He sent for Kelley on the occasion for that purpose, and when asked by the messenger, his son, whether Kelley was the' only witness he wanted, he replied, no, but that Mr. Woodruff could be a witness.

The particular objections to the execution and publication of this will are, first, that it is not shown that the testatoi requested either of the subscribing witnesses to sign it as such witnesses; second, that the statut.e requires the testator, at the time of subscribing the will &c. to declare the instrument so subscribed to be his last will and testament; and that the evidence shows that such declaration was not made after the testator had subscribed the instrument} that the statutg requires the instrument to be subscribed by the testator be-' fore he makes the declaration. The language of the statute is as follows: “ Every last will and testament of real or personal property, or both, shall be executed and attested in the . following manner : 1st. It shall be subscribed by the testator at the end of the will. 2d. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. 3d. 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. 4th. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the' will, at the request of the testator.” (2 R. S. 63, 5th ed. 144.)

The first two of these requirements appear to have been complied with. The objections to the sufficiency of the proof *381of the will arise under the 3d and 4th subdivisions. In regard to the third, namely, that the testator did not declare the instrument to be his last will and testament, after he had subscribed it, tbe exact question has been twice decided in this court; once in the third district, (Doe v. Roe, (2 Barb. 200,) and once in the 5th district, (Keeney v. Whitmarsh, 16 id. 141.) Both cases are exactly in point, and are authority with us, and are point blank against the appellant. In both cases the declaration was made before the wills were signed by the testator, and not afterwards, and it was held' in each case that the 3d subdivision of the section cited was complied with. It was held in both cases, as it has been in many others which could be referred to, that the statute prescribing the manner of executing and attesting last wills and testaments, does not require a literal compliance with its provisions; but that a substantial observance of them will be regarded as sufficient. The case of Coffin v. Ex’rs of Coffin, (23 N. Y. Rep. 9,) is a strong illustration of this principle.

The remaining objection to the manner of proving the will in question, namely, that the evidence does not show that the witnesses were requested by the testator to sign the will as witnesses, cannot be maintained. In the case of Coffin v. Ex’rs of Coffin, (supra,) it was held that the testator’s request to the witnesses to subscribe the attestation might be made through any words or acts which clearly evince that desire to them. Let us test this question in this case by that rule. The attendance of the witness Woodruff was procured by the testator for the purpose, as well to be a witness to his will, as to write, it. The testator had procured the attendance of Kelley for the sole purpose of his becoming a subscribing witness. He knew they were both to be subscribing witnesses. They were in the same room with him, sitting at the same table, at the time he subscribed the will. After he had subscribed it he handed it to Woodruff, who subscribed it as a witness, in his presence, and handed it to Kelley, who signed the attestation clause. When the latter began to *382write his name, the testator told him he must name the town and county he lived in, thus showing that he knew what Kelley was doing, and giving him directions as to the manner in which he should become a subscribing witness. For what purpose did he pass the paper to Woodruff, except that he might subscribe it as a witness, which was one of the objects for which he procured his attendance ? It seems to me that the evidence shows very clearly that the testator desired both Woodruff and Kelley to subscribe the will as witnesses, and that such desire was unmistakably manifested at the time by his acts and declarations; and if that was so, it was a valid attestation.

[Monroe General Term, March 2, 1863.

Johnson, J. C. Smith and Welles, Justices.]

The only remaining questions in the case are whether at the time of the execution of this will the testator was of sound .and disposing mind and memory, and was free from any undue influence in the dispositions he thereby made of his estate. I have looked carefully through all the evidence, and am constrained to say that the evidence taken all together, in my opinion, comes short of establishing either of those propositions.

The mind is impressed with the apparent injustice to his wife and his daughter Elvira, towards whom,. the evidence shows, he entertained ordinary feelings of natural affection. Such a circumstance is always evidence to be taken into consideration in examining the question of a testator’s soundness of mind at the time of making a disposition of his property by will. But it is only a circumstance, and I believe has never been regarded as sufficient, alone, to invalidate a will. A man has the right by law to make whatever disposition of his property he chooses, however absurd or unjust. ,

Upon the whole I am of the opinion that the order or sentence of the surrogate should be affirmed with costs.