124 N.Y.S. 615 | N.Y. Sur. Ct. | 1910
There is offered for probate in this proceeding a written instrument which bears date March 12, 1890, and
The decedent died January 7, 1909, and is survived by her husband, the petitioner, a son and two daughters. The instrument, which is in all respects in the form of a will, was written by the decedent’s husband, and he is named as the executor thereof and sole beneficiary thereunder. The son and daughters, have filed, an answer to the petition wherein they object to the probate upon three grounds, namely: (1) that the instrument offered for probate is not the last will and testament of the decedent and that the execution thereof was not her free, unconstrained or voluntary act; (2) that the instrument was not subscribed, published ánd attested as and for her last will and testament in conformity with the statute in such ease made and pnr vided; and (3) that the instrument is invalid as a last will and testament and is illegal and void.
The instrument contains the usual attestation clause, which states that, upon its execution all the statutory formalities were observed with respect to the execution of wills. ■
It was subscribed by the decedent in the presence of two attesting witnesses who, at the same time, in her presence and in the presence of each other, subscribed their names as witnesses. These facts were proven by the testimony of the subscribing witness who survived the decedent and are undisputed. The decedent’s signature was written -at the end of the instrument, then followed the attestation clause, and the signatures of the-, subscribing witnesses, to which were added their respective-places. of residence.
The instrument was executed on the day it bears date at the decedent’s home in Hew York city. William H. ¡Spencer, one of the subscribing witnesses, died prior to- the 'decedent’s death; but the surviving witness, George A. Sturtevant, was produced by the proponent and his examination and testimony were taken upon the ’hearing. The proponent -also produced proof of the
The witness Sturtevant testified, among other things, that the instrument was executed in the evening in the dining-room of the decedent’s home; that he was requested to witness the decedent’s signature by her husband, as was also Mr. iSpencer, as he supposed; and that she said nothing at all to him or in his presence at the time of the execution of the instrument. He also testified that the attestation clause was not read to or by him; .that he did not know and that the decedent gave no intimation of what the instrument was, and that she did not suggest, or in anywise manifest a wish, that he sign it as a witness.
He never saw the instrument after its execution until shortly before it was offered for probate, when it was exhibited to him by the decedent’s husband. The witness called frequently at the •decedent’s home and was on terms of intimacy with her family. He became indebted to the decedent’s husband in a considerable amount about the time of or shortly before the execution of the instrument. This indebtedness was never paid; and some time after the execution of the instrument" his visits at the decedent’s home ceased, and the intimate relations which had theretofore .existed were terminated.
The witness, having testified,' in substance, that there was no publication of the will and that he and Spencer had attested its execution without being requested to do so by the decedent, was examined rigidly and at length with respect to various other matters having some relation to the execution of the instrument, and it was made apparent that his memory" was not to be relied
“ Q. I want to know not what took place in the hall; I want to know what took place in the way of conversation in the dining-room between you and Hr. Walker, or any other persons that were in that dining-room while you were there? A. I do not recall any conversation at all, sir. Q. Yone at all? A. Yo. Q. You mean to say by .that that none did take place, or you do not recollect ? A. I don’t recollect what the conversation was. Q. You do not state there was no conversation, do you ? A. Yo> I do not state that. Q. And, if there was a conversation, you want the court to understand that you do not remember what it was; is that true? A. Yo. Q. Is that true? A. In a measure it is true. Q. Because whatever conversation was had in that •dining-room after you entered it between any of the persons that were therein your company is entirely a blank and has passed from your memory; is that true ? A. Yes. Q. And you cannot recollect any of the conversation at all? A. I said so. Q. Then all you say and all you remember as to what took place in that dining-room, as far as your recollection aids you at the present time, are the acts that were performed by the various parties ? A. Yes.” By the Surrogate: “ Q. What I want to know, Hr. Sturtevant, is this: may it or may it not have been*431 possible for things to have transpired there at the time of the execution of the will as to which your memory would fail to serve you, a period of nineteen years having elapsed meanwhile ? A. Oh, there may have been, but the things that appeal to me I remember; the things that have a vital interest to me; those are the things that I have thought of and recall.”
The evidence of the witness is to some extent contradictory, and is uncertain and unsatisfactory; and, after a careful consideration of it, having in mind the long period of time, namely, nineteen years, that has elapsed since the transaction to which it relates occurred, I am led to the conclusion that his statement that there was no publication of the will cannot be relied upon, and I am unwilling to accept it as true.
There ;are several facts which tend to show that there was a proper execution of the will. It was drawn by the decedent’s husband, an attorney of some forty years’ experience, who knew what the statutory requirements were, and who had appended to the will an attestation clause that was full and explicit. He was present when the will was executed and superintended its execution. These facts afford a strong presumption that the statutory requirements were complied with. There is no evidence of fraud or undue influence. My conclusion, upon all the evidence, is that the will was published and attested as required by law; and that the witness Sturtevant has forgotten or errs in his recollection of the occurrence.
The statute (iCode 'Civ. Broc., § 2620) provides that “ If all the subscribing witnesss to a written will are, or if a subscribing witness, whose testimony is required, is dead, * * * or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may, nevertheless, be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also' of such other circumstances as would be sufficient to prove the will upon the trial of an action.”
The precise force which should be -accorded to- a full attestation clause, regularly authenticated, is not very clearly defined in the cases; but they all agree in the conclusion that it is entitled to great weight in the determination of the fact involved. Orser v. Orser, 24 N. Y. 55; Matter of Hesdra, 119 id. 615; Matter of Kane, 20 N. Y. Supp. 123.
It has been held that mere want of recollection on the part of the witnesses will not invalidate the instrument, and the courts, "in establishing the wills propounded, have done so upon the ground that they were satisfied from the circumstances proved "that the wills were duly executed and that the witnesses had forgotten, thus relieving the parties interested against the infirmities of humanity and the uncertainty of human recollection. Lewis v. Lewis, 11 N. Y. 220.
In the case of Woolley v. Woolley, 95 N. Y. 231, cited by the learned counsel for the contestants, the court, in commenting •upon the evidence on which probate had been denied, drew a
In Matter of Sizer, 129 App. Div. 7, recently decided, and affirmed on appeal by the 'Court of Appeals, without opinion (195 N. Y. 528), the will was offered for probate upward of •eight years after its execution. There were three attesting witnesses, two of whom testified that they had no recollection of signing the will, or of being asked to, or of anything connected with it, but acknowledged their signatures to be genuine. The witness who signed last (the third witness) testified that he did mot know what the paper was, and that the testator did not say. The will contained a full attestation clause. The court, in commenting upon the evidence upon which the will was admitted to probate, at page 9, says: “ In the present case, therefore, the surrogate was permitted, the recollection of the subscribing witnesses failing, to resort to such other evidence as is receivable in an action. He had before him a full attestation clause and proof of the signatures of the testator and the subscribing witnesses. 'Was this alone evidence of the execution of the will with the formalities required by law ? It was. There is m> requirement of an attestation clause, but it is nevertheless recognized as evidence by the courts, and received, when necessary, and, after proof of the signatures of the testator and the subscribing witnesses, as prima facie evidence of the facts certified By it. On examining the cases in this State, it will be found.
With respect to the publication of a will, it has been held that no particular form of words is required; a substantial compliance with the requirements of the statute as to execution and attestation is sufficient. Lane v. Lane, 95 N. Y. 494; Matter of Beckett, 103 id. 167; Matter of Hunt, 110 id. 278.
Will admitted to probate. Formal findings may be presented with the decree.
Probate decreed.