5 N.Y.S. 260 | N.Y. Sur. Ct. | 1889
Section 2623 of the Code of Civil Procedure provides: “If it-appears to the surrogate that the will was duly executed, and that the testator, at the time of executing it, was' in all respects competent to make a will, and not under restraint, it must be admitted to probate as a will valid to pass-real property or personal property, or both, as the surrogate determines.” The rule of decision in this state is that, if there be a reasonable doubt whether one or more of the directions of the statute have not been complied with, probate must be refused, even though it appear probable that the paper expresses the testator’s intention. Seminary v Calhoun, 25 N. Y. 422; Rider v. Legg, 51 Barb. 260; Nexsen v. Nexsen, 3 Abb. Dec. 360.
I am unable to decide from the evidence taken and reported to me for my consideration by the assistant whether the testatrix, at the time of executing-the paper propounded as her last will, was “competent to make a will.” The rule on this point was stated by Baron Parke in a case decided by the judicial committee of the privy council of England, upon appeal from the prerogative court. Barry v. Butlin, 1 Curt. Ecc. 637. He says: “ The rules of law according to which cases of this nature are to be decided * * * are two: thetirst that the onus probandi lies, in every case, upon the party propounding a-will, and he must satisfy the conscience of the court that the instrument so pro
It is probable that the doubt in my mind would be removed if the witnesses ■were to testify in my presence. The learned assistant has conducted the proceedings before him with great caution, and has aided counsel to bring out all the facts. But the manner of the witnesses in testifying, their appearance •on the witness stand, are unknown to me, and, in a proceeding where there is such sharp conflict of evidence, I must have the advantage of seeing and hearing the witnesses. I cannot determine as to the capacity of the testatrix At the time she executed the paper propounded. The question is, did the testatrix, at the time of executing the paper propounded, comprehend its meaning ? Was she then capable of knowing what she was doing? I think I may .lawfully transfer this proceeding to the court of common pleas, for the purpose of a jury trial. Section 2547, Code. However, I do not now decide upon that. I do hold that the proceeding must go to a jury, or that it must be tried before me de nova. I will hear counsel on the opening of court the 11th instant.