76 A.D. 212 | N.Y. App. Div. | 1902
The sole objection to the probate of the will in suit is to the proof of its execution. The only witnesses offered by either party were the two subscribing witnesses to the will. The evidence of these witnesses fails to show due conformity on the part of Harriet Hash to the requirements of the statute (2 R. S. 63, § 40) necessary to constitute a valid will. The learned surrogate, however, has admitted the will to probate solely upon the faith of the attestation clause which precedes the signatures of the alleged witnesses. It has been held in numerous cases that, where the witnesses fail to recollect the circumstances under which the will was executed, the attestation clause may' be referred to in support of the probability of due execution. But an attestation clause is simply the declaration of the witnesses to. the will. It is not a necessary part of the will. The declarations, of a witness are not ordinarily competent evidence of a fact. While this declaration of the attesting witnesses seems to be an exception to the rule, and in certain cases has authorized the admission of the will to probate in face of the entire forgetfulness of the witnesses as to what did occur, I am referred to no authority which goes so far as to hold this declaration to be proof of the fact of due execution as against the distinct recollection of the witnesses that the formalities required by the statute were not observed. This will was executed upon the 16th day of April, 1900. The witnesses were two of the testatrix’s neighbors who, so far as appears, were in no way associated with the contestants, nor had they any reason to vary from the exact truth in their testimony. The witnesses were called upon to swear to their recollection in July, 1901, a little over a year after the transaction occurred. The witness Hewell swears that he was asked by Mr. Ware to come over and witness some paper; that he entered the dining room, where was Mrs. Hash. “Mr. Ware
The witness Guild swore that he was asked by Mr. Ware to go over to Mrs. Nash’s to witness some papers, and then swears: “ As we came into the dining-room, saw Mrs. Nash there. Mr. Ware produced the paper and laid it down on the table. It was this will. Mrs. Nash immediately got her glasses and pen and ink, and Mr. Ware pointed to the line indicated and told her where to sign on that line opposite to the seal; then he indicated to Mr. Newell where to sign ■ as a witness to her signature and told me to sign it under his name, giving our post-office address. Mr. Newell and myself immediately retired from ■ the house and left Mr. W are and Mrs." Nash in the house. I am very positive that was all there was said or done while
The extracts from the testimony above given, state, in substance all the evidence there was as to the publication of the will by the testator. It is apparent that there was not merely a failure of recollection as to what did happen but a distinct recollection as to what did not happen. As against that distinct recollection of both witnesses to the will, that the will was not published, as' required by law, I ain clearly of the opinion that the attestation clause is not sufficient to prove the due execution of the will. To hold otherwise would practically nullify the purpose of the statute. There is not a word of proof that Harriet Nash knew that she executed a
We are of opinion, therefore, that the proponent has failed to establish the execution of the will in conformity with, the requirements of law and the decree of the surrogate should be reversed.
All concurred.
Decree of the surrogate reversed upon law and the facts and a trial of_the following questions directed by a jury at a Trial Term of the Supreme Court to be held in the county of Essex on the third Monday in December, 1902 : First, did the testatrix, at. the time of signing her will, declaré the instrument, so subscribed by her, to be her last will and testament ? Second, did the witnesses to the said will sign the same at the request of the testatrix ? With costs to appellant to abide event, and to be paid from the estate.