43 N.Y.S. 689 | N.Y. App. Div. | 1897
The will was presented for probate to the surrogate of the county of New York. The surrogate made a decree denying probate of . the will. On appeal, the General Term of the Supreme Court, reversed the surrogate’s decree and made a decree admitting the will to probate. On appeal, the Court of Appeals modified the decree-made by the General Term of the Supreme Court so as to direct atrial by a jury, at a Trial Term of the Supreme Court, of certain questions of fact arising upon the issues between the parties. The trial of these questions of fact was had in May, 1896, and the jury found that the instrument presented for probate was not subscribed by the testatrix in the presence of the witnesses, but that she did' acknowledge her subscription to each of the witnesses. At the time the verdict was rendered, the appellant moved to set aside the ver
We are called upon, therefore, to examine the appeal upon its merits and to determine whether the order denying the motion for a new trial was properly made. The principal contention by the appellant is, that the evidence was insufficient to sustain the finding of the jury that the testatrix acknowledged her subscription to the will to each of the witnesses. The questions to which these answers were made were in the precise language of the statute prescribing the requirements necessary for the proper execution of a will. These provisions are, that 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.” (2 R. S. 63, § 40.) The jury found, and the fact was not controverted, that the subscription of the testatrix was not made in the presence of the witnesses. The paper had been subscribed before the witnesses appeared. The question is whether the subscription by the testatrix was acknowledged by her, to have been made, to each' of the witnesses. The jury answered “ yes,” and the appellant claims there was no evidence to support that answer and finding. There was evidence to show that the will, when presented to the witnesses, had already been subscribed by the testatrix, and that she said, in the presence of both witnesses, that the instrument was her will. There was evidence from which it might be inferred that she told them she had subscribed the will. The real controversy was over the question as to whether she exhibited the signature to both of the witnesses and whether it was visible to them. R is well settled that the acknowledgment of the subscription is not sufficient within the statute unless the signature is visible to the witnesses. (Matter of Laudy [this same case], 148 N. Y. 407, and cases therein cited.) The courts say that the subscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator, and for this purpose it is essential either that the wit
In Lewis v. Lewis (supra) 4t appeared that the paper -was so folded that they did not see any subscription. The court held the will not properly executed, and said: “ If the party does not subscribe in their (the witnesses’) presence, then the signature must be shown to them, and identified, and recognized hy the party, and in some apt and proper manner by him as his signature. The statute is explicit and will not be satisfied with anything short of a substantial compliance with its terms.”
In Matter of Mackay (supra) it appeared that the paper was so folded that the witnesses could see no part of the writing except the attestation clause, and they did not see either his signature or his seal. For this reason the will was held not to have been properly executed. The court used the language first quoted by us above “ Subscribing' witnesses to a will are required by law,” etc.,, and these cases are cited and approved in Matter of Laudy (supra).
If this language of the courts is to have its fair and reasonable construction, the signature must be so far visible to the witnesses as that they can see and know that the name purporting to be subscribed is the na/m,e of the testator. Otherwise, they cannot identify it as that of the testator, and where the signature is so far intentionally concealed and covered up by the testator, that the witnesses can merely see that there is some writing where the signature is claimed to have been, but cannot read the writing, we fail to see how it can be fairly said that the signature is visible to the witnesses in such a sense as to constitute a compliance with the statute and the construction given ■ to: its language by the courts. In this case it appears that the testatrix held the will do\yn upon the table with both hands, and so folded as that neither the writing nor the signature were visible except as the edge of the fold was accidentally raised so that Dr. Porter, one of the witnesses, observed that there was. some writing where it now. appears that the signature of the testatrix was written. To quote from the doctor’s evidence, 111 don’t know just exactly how it (the. paper) was held, but it was held in such a way that all the writing was covered nip practically except that I
It is true that in some cases, in view of the circumstances and the inferences to be-drawn from the evidence, a will may be found to have been properly executed even though both witnesses fail to testify to a proper execution of the will. Failure of the memory of the witnesses may be disregarded and the facts found from other evidence in the' case, and the inferences to be drawn therefrom. In this case, however, there is an utter absence of any facts or circumstances from which an inference can be drawn that the signature of the testatrix was visible to the witnesses or either of them. On the contrary, the evidence affirmatively shows that the testatrix studiously and persistently prevented the witnesses from seeing what was written, and the conclusion is irresistible that neither witness did see the signature, so as to read it or be able to identify it, or to say that it was or purported to be a signature at all. ■
It cannot be said that the fact that the witnesses signed the attestation clause was a circumstance tending to show a proper execution of the will, because it appears without contradiction that the witnesses were not permitted to read or -even see the contents of that clause.
We are unable to perceive how, under the evidence in this case, the jury were justified in making the answer and finding complained of. It is unnecessary to consider the alleged error in the charge in view of the conclusion at which we have- arrived upon the main question in the case. -
Our conclusion, therefore, is that the order denying the motion for a new trial was improperly made and should be reversed and a new trial granted as to the second question of fact, with costs to abide the event.
Van Bbunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed and new trial granted as to the second question of fact, with costs to appellant to abide event.