In re the Probate of the Last Will & Testament of Cornell

85 N.Y.S. 920 | N.Y. App. Div. | 1903

Jenks, J.:

To say the least, there is much force in the criticism that the attestation clause is not full enough, though an argument contra may be made upon the word “thereupon.” But an attestation ■clause is not essential. Disregarding it as not explicit, I am of ■opinion that the learned surrogate did not err in decreeing probate.

The contestant offered no evidence. Hone was called save the two subscribing witnesses and the attorney who prepared the codicil and attended upon its execution. The subscription of the testator appears at the end of the will. The three witnesses agree that the testator made such subscription at the time in question, and the two ■subscribing witnesses (the lawyer not contradicting) agree that the .subscription was made, in their presence, and that the testator then •declared that it was his last will. Mr. Rohlack, one of the subscribing witnesses, testifies that the testator asked him to sign, and that the lawyer in the presence of the testator explained that the instrument was a codicil and “ what we signed for ; what we were witnesses for; to the codicil to the will. * * * Mr. Oornell (the testator) said those were what his wishes were; to make a codicil. * * * He said nothing to me about requesting me to sign it at that moment as a witness, but he called me for a witness.. Mr. Cornell said that he wanted me to witness it.” Mr. Nehrbarsr the other subscribing witness, testifies that the testator had asked him to be a witness to -his will, and that he attended the execution, but that he could iiot remember whether at that time the testator said anything, but that the will was read over to him, and the lawyer' said.: “ You are ready to sign; do you want to sign it? ”

I think that there is sufficient evidence to sustain .the decree ' which is based upon the fulfillment of the statutory requirements. (Chaffee v. Baptist Missionary Convention, 10 Paige, 85; Lane v. Lane, 95 N. Y. 494, 495 ; Matter of Nelson, 141 id. 152, 157; Jackson v. Christman, 4 Wend. 277, 282.)

The main contention of the learned counsel for the appellant is-that the codicil is invalid because the testator subscribed the • instrument in point of time after the subscribing witnesses. Mr. Rohlack at first does testify that this was the order of subscription, but he subsequently qualifies his testimony by stating : “ I am not sure about that; I think he signed it afterwards.” Opposed to him is the positive testimony of the other Subscribing witness, who is clear against his fellow; and that of the attending attorney, who is also explicit' that the testator subscribed first. We have, then, the testimony of one subscribing witness, who avowedly is not certain in his statement, opposed to the positive testimony of the other witness and that of the lawyer who attended upon the execution of the will. I see no reason to disturb the finding of the learned surrogate. (Code Civ. Proc. § 2620; Jauncey v. Thorne, 2 Barb. Ch. 40, 59 ; Orser v. Orser, 24 N. Y. 51; Egan v. Pease, 4 Dem. 301.)

The appellant contends that the testimony of the witness, Mr. Simonson, must be disregarded because there is nothing to show that he was present, and because he was prohibited from testifying. Mr. Simonson is the lawyer who prepared the codicil. Mr. Rohlack testifies that the lawyer told him that it was a codicil, and that the lawyer was present at the time. He testifies: “ I don’t know his name, but the gentleman is here.” He further testifies that the lawyer explained “ what we signed for ” in the presence of the testator. The other subscribing witness testifies that the lawyer read the clause to him, and that a lawyer was present and took part in the formalities of the occasion. Mr. Simonson testifies that he drew the codicil and that Mr. Cornell signed the will first. There is not a particle of evidence to the effect that Mr. Simonson was not present at the time in question. So far as competency is concerned, the witness was called to the stand by the proponent, the: sole executor of the testator, and I think that the rule of Holcomb v. Harris (166 N. Y. 257, 263) applies in full vigor.

The decree should be affirmed, with costs.

Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirméd, with costs.