166 N.Y. 330 | NY | 1901
The surrogate's conclusion, that the will of the deceased was not executed and attested in the manner prescribed by the law of the state and that probate thereof should *335 be denied, was based upon findings as to the facts which seem to me to be quite controlling. He found, in substance, as follows: that the instrument which was offered for probate, with the attestation clause appended thereto and subscribed by two witnesses, was in the handwriting of the testatrix; that, upon the occasion when it purported to have been executed, the witnesses had attended upon the deceased at her room in a hotel, in pursuance of her request to Mrs. Barnes, one of them, "to bring her husband with her to witness a document;" that then the "document," already signed, and "folded so that its contents could not be seen," was placed upon the table before them and being "told to sign at the place designated by the testatrix under the attestation clause," they affixed their signatures and were dismissed; that "the decedent did not sign such paper in the presence of the witnesses, or either of them;" nor did she "acknowledge such paper to have been subscribed by her" to either of them; that she did not, "either at the time of making such subscription, or at the time of the signing of the instrument by the witnesses, or on the said occasion, declare to, or in the presence of, the said witnesses, or either of them, that such instrument was her will" and she did not "in any way communicate to them that it was her will, or an attempted testamentary disposition of her property." Further, the surrogate, specifically, refused to find these requests: "That each of the witnesses to said paper writing knew at the time their names were signed thereto that it was the will of the decedent," and "that at the time each witness signed his or her name, he and she saw the signature of the decedent to the paper writing and read the attestation clause, or a portion thereof, including the words therein, `will and testament.'"
The decree of the Surrogate's Court, which was made upon these findings, was unanimously affirmed at the Appellate Division and while the appellants concede that, by reason of such affirmance, this court cannot review the evidence and must accept the facts as found, they contend that the question of law, nevertheless, remains whether upon these facts the *336 surrogate's conclusion of law was correct. In substance, their argument is that, within a fair construction of the Statute of Wills, there was an acknowledgment by the testatrix of her signature and that there was a sufficient publication of the instrument as her will.
The only question upon this appeal then is, whether the Surrogate's Court could have admitted the proposed instrument to probate, as the last will and testament of the deceased, upon the facts as established. The Statute of Wills provides that "every last will and testament of real and personal property shall be executed and attested" in a manner prescribed. The subscription, required of the testator, shall be made by him in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been made, to each of the attesting witnesses, and, at the time of making the subscription, or of acknowledging the same, he shall declare the instrument so subscribed to be his last will and testament. (2 R.S. 61, § 40.) The surrogate, before admitting a will to probate, is required to inquire particularly into all the facts and circumstances and he "must be satisfied * * * of the validity of its execution." (Code Civ. Pro. § 2622.) Now it should seem to be pretty clear that whether an instrument propounded for probate was the will of the deceased and whether it was validly executed as the statute prescribes, are made pure questions of fact, which the surrogate must determine upon his inquiry. The feature of the case, which is deemed of such importance by the proponents, as affecting the question of publication and as demanding a different legal conclusion than that reached below, is that this was the holographic will of the deceased. The statute, however, makes no exception with respect to a holographic will, in its requirements as to execution, and it is not easy to understand how its holographic character dispenses with, at least, some substantial compliance with the formalities prescribed for the proper publication of a will. The statute still requires obedience. (Matter of Beckett,
This case differs from that of Matter of Hunt, (
In each case, the circumstances, as they are disclosed by the evidence, must determine the question of the validity of the execution and publication of a will. The inquiry is to be made by the surrogate and his decision upon the evidence before him, either way, when approved by the Appellate Division, is binding upon this court.
There are no other questions involved in this appeal, which demand our attention, and I advise that the order appealed from should be affirmed, with costs to the respondents appearing by separate counsel in this court to be paid out of the estate.
O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ., concur; PARKER, Ch. J., not sitting.
Order affirmed. *339