20 N.Y.S. 394 | N.Y. Sup. Ct. | 1892
No question was made of the testamentary capacity of the decedent, nor that the alleged will was duly executed by him. The questions of fact upon which there was some conflict of evidence, and in respect to which the evidence was held by the learned surrogate to be insufficient to warrant the granting of probate of the will, related (1) to the due publication thereof by the deceased as his will, and (2) to the request by the deceased that the witnesses should attach their names as subscribing witnesses thereto. The decedent was an unmarried man of upwards of 60 years of age, and had been deaf and substantially dumb from early childhood. He had been accustomed to communicate his ideas mainly by signs and gestures, constituting a species of pantomime, and sometimes by writing on a slate or pieces of paper, and he was able to understand, to some extent, communications made to him, by the motion of the lips of persons who spoke to him. The scrivener who drew his will—a schoolmaster by profession, and, as his testimony taken on commission indicates, a man of intelligence—had known him for several years, and had frequently conversed with him by means of signs, previous to the interviews in reference to his will. He was able to read print, and some writing, and to write, himself, to some extent. Shortly before drawing his will, the scrivener had received information from the sister of the testator that the latter desired to have him draw his will, and he visited him at his sister’s house, where he had been living for a number of years, taking with him a printed form of a will, which lie exhibited to the testator, and was informed by him by means of intelligible signs that he wished him to draw his will, and that he desired to give his property to the sister with whom he was living. The scrivener went away and filled out the printed form accordingly, inserting an additional provision for the contingency of his sister’s not sur