In re Revocation of Probate of the Last Will & Testament of Voorhis

| NY | Feb 24, 1891

Said Ann Yoorhis died in 1882, leaving a will dated in 1879; she left no children, parents, brothers or sisters; her nearest relatives were nephews and nieces and children of nephews and nieces. The will was, after a contest, admitted to probate in Fovember, 1885, and about a year later one of her nieces applied for a revocation of probate on the ground of want of testamentary capacity, ignorance of the provisions of the will on the part of the testatrix when she executed it, and a failure to comply with the statute in its execution. It appeared that the testatrix called upon her counsel at his office and told him how she wished to dispose of her property, and that he drafted a will according to such directions, which was read over to her at her house and corrected and changed at her suggestion, and that the will in question was a copy of that paper; that the testatrix executed it without reading it over herself or having it read to her. It also appeared that the testatrix was a woman of little education, quite ignorant, penurious, excitable and changeful, but understood the nature and effect of the transaction, had knowledge of- the property she was about to dispose of and recollection of the persons having-a natural claim on her bounty. The surrogate found that the-testatrix was of sound mind and memory, and capable of making a will. This was affirmed by the General Term. Held, that the evidence was sufficient to support the finding, and it was not reviewable here.

The will was -signed by the testatrix at her house, in the •presence of the subscribing witnesses, who attended at her request,, and that of her counsel who drew the will, and who was present by appointment. These three persons testified that they saw the testatrix sign the paper without aid or assistance, and it was then signed by the witnesses in her presence and in the presence of each other. One of said witnesses testified that when he signed, either the testatrix or her counsel stated that -it was her will, and the other that, before he signed, the counsel asked the testatrix “ if she wished these gentlemen to witness her will,-and she said yes.” The counsel testified that 'the testatrix signed and the two witnesses signed after he had asked her “ if she had signed and sealed - this paper and published and declared it as her last will and testament, and requested these gentlemen to execute it as witnesses,” and they then signed it as witnessess. The attestation clause is in the-usual form, reciting its publication in the presence of both witnesses, who at her request and in her presence, and in the presence of each other, signed as subscribing witnesses.

The contestant claimed the proof failed to show that the will was duly executed.

The court says on this subject:

“ The only question that arises in regard to the proper exe* -cution of the instrument is respecting the formality of publi-cation. On that point the fact must be kept in view that the deceased not only requested the attendance of the witnesses at the execution of the instrument, but also the experienced counsel who drew it, in order that every formality necessary to the valid execution of the instrument should be complied with. It is extremely unlikely, under these circumstances, that such an important requirement of the statute was omitted. The surrogate has found as a fact that the deceased duly published and declared the instrument to be her will in the presence of the two witnesses, and the attestation ■clause recites the publication of the will in the presence of both witnesses. One' of the witnesses testified that •either the deceased or the counsel said when he signed the instranent, that it was the will of the deceased. The other witness testified that before he signed the paper, the counsel asked the deceased ‘ if she wished these gentlemen to witness her will, and she said yes; ’ and the counsel swears that the deceased signed her name to the paper, ‘ and the two gentlemen, after I had asked her if she had signed and sealed this paper, and published and declared it as her last will and "testament, a,nd requested these gentlemen to execute it as witnesses, and they then signed it as witnesses.’ This proof was sufficient to sustain the finding of the surrogate that the will was published. A substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient, and that was established. (Gilbert v. Knox, 52 N.Y. 125" court="NY" date_filed="1873-01-28" href="https://app.midpage.ai/document/gilbert-v--knox-3606078?utm_source=webapp" opinion_id="3606078">52 N. Y. 125; In re Will of Cottrell, 95 id. 329; In re Higgins, 94 id. 554.) ”

William JB. Hornblower for appellant. Edwa/rd T. Ba/rtleit for respondent. <7. E. Traey for respondent, the residuary legatees. O’Brien, J.,

reads for affirmance.

All concur.

Judgment affirmed.