38 Barb. 364 | N.Y. Sup. Ct. | 1862
1. The will in question was well executed. The testator and the witnesses were all in the same room at the moment the attestation was signed. The witnesses all signed substantially in the presence of each other, as well as in the actual presence of the testator, within the meaning of the statute. So far as the witness Miles is concerned the will was actually signed in his presence. Miles, at the request of the testator and in his hearing, requested the two other witnesses, Hurley and Collins, then present in the same room, to witness the will, in these words : “ Mr. Gilman requests you to witness his will.” The instrument was then produced, already signed by the testator, and in his presence signed by Hurley and Collins, as witnesses. The testator had previously requested Miles to have these persons present to witness the execution of his will, and to be present himself. The testator understood the business which was then being transacted. He made no objection to the declaration or request made by Miles in his presence and hearing, but proceeded to consummate the business for which he came there, the execution and attestation of his will. The intent to execute his last will was thereby published and declared, and was also acknowledged by the testator, and the witnesses, were by him requested to become attesting witnesses.
2. The codicil is also well executed. An instrument is. signed at the end when nothing intervenes between the instrument and the subscription. Who shall undertake judicially to say that the subscription shall be one-eighth of an
These principles are, I think, in conformity with the spirit of the decisions in this state in respect to the execution of testamentary instruments.
3. The decree of the surrogate, admitting the will to probate, determines only the Sufficiency of its execution. In respect to this question the domicil of the testator is unimportant in this case.
Ingraham, Leonard and Peckham, Justices.]
