11 Mills Surr. 288 | N.Y. Sur. Ct. | 1913
The proofs show, in substance, that Alida Roe, the alleged testatrix, evidently cmimo testandi drew the very informal paper propounded in this proceeding. I shall assume that it is, as alleged by proponent, in her handwriting, or a holograph. It is dated at the foot, 31st of December, 1911. It seems Mrs. Roe, the maker of the will, on the fifth of March following called on one of the attesting witnesses, Mr. Michels, an undertaker, at his place of business, No. 208 East Forty-seventh street, Manhattan, and then handed him the paper in question. It was. already signed by Mrs. Roe before her visit to
Mr. Mealey, the other attesting witness, testified in substance that in March, 1912, or thereabouts, Mrs. Roe asked him at No. 801 East Forty-sixth street, Manhattan, to sign her will as a witness, and then showed him her signature telling him it was her signature. Mr. Michels, the other witness, was not, however, then present. At no time were the attesting witnesses together in the presence of Mrs. Roe. Whatever occurred between Mrs. Roe and the attesting witnesses took place on separate occasions.
The question is whether this was a good execution pursuant-to the existing Statute of Wills. A short retrospect will, perhaps, facilitate the correct application of the principle of testamentary law controlling this cause. Prior to the passage of the first Statute of Wills (32 Hen. VIII, chap. 1; afterward in force in the province of New York and again expressly re-enacted after our independence of the Crown by the new state legislature, 2 J. & V., 93), the Ecclesiastical Courts in England did not follow the Roman law regulating the execution of wills, as the English jurist Jenks thinks they logically should have done. Jenks’ Hist. Eng. Law, 267, 269. Contrarywise, by the testamentary common law of England, almost any paper of a
It was not until the Statute of Frauds (29 Car. 2) that the execution of devises was regulated by statute, and thereafter they were required to be in writing, signed by the party, or some other in his presence and by his direction, and attested and subscribed in the presence of the devisor by three or four credible witnesses. The Statute of Frauds, although passed after New York had an established government of its own, and although New York was not named in the act, was regarded as in force in this province, and was subsequently so treated by the legislature of the state of New York. It had thus become a part of the Statute of Wills in the province of New York as in England, a condition of things repeated by the first reconstructive legislation enacted after our independence of the Crown. When the English statutes operative in New York came to be re-enacted by authority of the independent state government, the old Wills Acts (32 & 34, Hen. VIII), with its several amendments was re-enacted here (Laws of 1787, chap. 47, 1 K. & R. 178; 1. R. L. 364), and until the Revised Statutes our law of wills corresponded very closely with the old law in force before our independence of the Crown. Even after the Statute of Frauds a devise was well executed if attested by three witnesses who subscribed their names at the request of the testa
In England the law of wills was extensively remodeled and for the future regulated by the Wills Act of 1888 (1 Viet, chap. 26), It is only necessary to allude to those reforms in the common law which reflect light on this case. Every will in England was required by the English “ Wills Act ” of 1888 to be signed at the end by the testator, or by some other person in his presence and by his direction, and such signature must be made or acknowledged in the simultaneous presence of two witnesses. Hindman v. Charlton, 8 H. L. Cas. 160; Wyatt v. Berry, 1893, 5 P. Of course the act 1 Victoria could have no influence on the then independent common law of the state of New York. But as the English act was enacted subsequently to the Revised Statutes of New York it is significant. The New York Revised Statutes very soon after their passage were reprinted in England, where they received the closest attention from the bench and the bar of that country. There was at that time, as at present in the instance of the equity rules of the Federal courts, some indirect interaction between common-law countries. While the Revised Statutes of New York made some changes in the substantive testamentary common law and the old Statute
By the Roman law, which may be regarded as the common law of Europe, the formal authentication of a testamentary act was carefully prescribed, and the simultaneous presence of the testamentator and the attesting witnesses at the moment of publication and subscription gave the testamentary session a solemnity and the testamentary paper an authenticity which is expedient in any prosperous and highly developed state. By the Roman law “ rogatio testium,” or testator’s request to the attesting witnesses to act as such, was essential. D. 28, 1, 21, 2; D. 28, 1, 20, 8. Mr. Jenks in the most recent “ History of English Law ” calls the departures from the Roman Law of Wills by the Ecclesiastical Courts of England illogical (pp. 267, 269). If we have regard to the fact that the transmission of an estate on the death of its owner to a new proprietor is a matter of public law, and not a matter of private law, we shall perceive that an act of testamentation is always in law one of extreme importance not only to the persons immediately concerned, but to the public at large. Excepting in rare cases of emergency the formal execution.of a will before assembled witnesses should be such as to cast no doubt on the authenticity of the will. By the Roman law the signing and sealing of the testament by the testator, o.r in his presence, and the due publication of the will must take place on one occasion, “ unit as actus,” before the testator and the assembled witnesses, who must then subsign and subseal the same before the session could be interrupted by extraneous matter. The statute of England
The New York Revised Statutes of 1830 required that the testator’s subscription to a will should be made in the presence of each of the attesting witnesses or should be acknowledged by the testator to have been so made to each of the attesting witnesses. 2 R. S., 63, § 40, now Decedent Estate Law, § 21. The Revised Statutes of Wills required only two attesting witnesses instead of three or more required by the old statute. As framed, it was easier to construe the Revised Statutes as dispensing with the simultaneous presence of the attesting witnesses than it was to so construe the old Statute of Wills as amended by the Statute of Frauds. The Revised Statutes, it will be observed, used the distributive “ to each witness.” Yet in Seymour v. Van Wyck, 6 N. Y. 120, a very badly reported case, there was evidently some latent idea that the simultaneous presence of attesting witnesses might be necessary under the Revised Statutes in order to constitute a good execution of a will. But in Hoysradt v. Kingman, 22 N. Y. 372, the statute was fully considered and construed as the old Statute of Wills had been construed. The simultaneous presence of attesting witnesses was in that case held to be unnecessary. The English cases on the old Statute of Wills were reviewed in Hoysradt v. Kingman, and held to have been binding here as authority.
But while publication and rogatio testium, or the testator’s request to the attesting witnesses to attest his will, may be made to such witnesses on different occasions, and when they are separated and apart; yet both a sufficient publication and rogatio testium must be proved by each of two attesting witnesses, or the testamentary paper is not well executed. Now in this cause it is established by proponent that the testatrix never in any way asked Mr. Michels to act as a witness to her will. Nor did the testatrix acknowledge her prior signature to him. This is fatal to proponent’s paper. 2 R. S., § 63; Id. § 40, subd. 4; now Decedent Estate Law, § 21; Tarrant v. Ware, 25
Decreed accordingly.