In re the Probate of Last Will & Testament of Eldred, 96 N.Y.S. 435

96 N.Y.S. 435 | N.Y. App. Div. | 1905

Chase, J.:

Ho evidence was offered that in any way attacks the competency of the testatrix to make a testamentary disposition of her property. It is quite evident from the record that she intentionally planned to prepáre and execute her will at the house of a friend who was wholly disinterested in the transaction. The will was prepared, not only without any one knowing its contents, but without its contents being in any way the subject of conversation. The paper thus prepared by the testatrix commences: “ I, Eliza D. Eldred, of Dolgeville in the county of Herkimer, State of Hew York, do declare this to be my last will and testament.” Following this statement its provisions are testamentary and sufficiently clear for the purpose of disposing of all of her property. There is no suggestion in the record of any undue influence having been exerted on behalf of the legatees named in the will. There are no suspicious circumstances surrounding its preparation and execution, and no fraud was practiced On the testatrix or by her in the transaction. While the fact that the will was prepared by the testatrix does not dispense with substantial compliance with the statutory requirements (2 R. S. 63, § 40), relating to its execution, the fact that the will is holographic shows that the testatrix understood its contents'and that it expresses her wishes, and the necessity for exercising great care in considering testimony relating to the execution 'of a will does not exist in.this case to the same, extent as in many others; (Matter of Beckett, 103 N. Y. 167; Matter of Turell, 166 id. 330 ; Matter of Akers, 74 App. Div. 464.) The testimony of B. shows a due and exact compliance by the testatrix with every statutory requirement; that she Was less positive on her cross-examination than she was on her direct examination only goes to the weight of her testimony. Tim testimony of M. must" be considered in connection with her own statement that her memory is very poor.

There is no dispute about the paper having beén signed at the end thereof by the testatrix, and it is in' fact a statement of her wishes in regard to' the disposition of her property. -It is the duty of the court to carry into effect her wishes and intentions unless the paper was not executed in compliance with statutory requirements. . __

. Whether the will was. executed in accordance with the statutory requirements is a question • of fact. (Matter of Turell, supra; Matter of Cottrell, 95 N. Y. 329 ; Matter of Elmer, 88 Hum, 290 ; Matter of Cornell, 89 App. Div. 412.; Matter of Hardenburg, 85 Hun, 580; Matter of de Haas, 19 App. Div. 266.) It 'is not the purpose of the statute to 'prohibit the probate of a will simply •because one of two or more witnesses thereto willfully or otherwise testifies against the facts necessary to constitute a due execution thereof. (Code Civ. Proc. § 2620.)

The surrogate, who must be satisfied of the genuineness of the will and pbe validity of its execution before admitting it to probate (Code Civ. Proc. § 2622), has’ found that-the testatrix signed the will in: the presence of the subscribing witnesses, and that she declared to them that it was her will He resides, in the county where the parties and witnesses in this ' proceeding reside, and before whom the witnesses appeared and gave their testimony. We see no reason for this court reversing such' findings or the debree admitting the will to probate. " The decree Of the surrogate should be affirmed, with costs. . • '

Decree of surrogate unanimously affirmed, with costs.