In re the Probate of the Last Will & Testament of de Haas

46 N.Y.S. 189 | N.Y. App. Div. | 1897

Rumsey, J.:

When this case was before the court upon the previous appeal from the decree of the surrogate it was held that there was not sufficient evidence that the signature of the testator had been seen or identified so that it could- be said that the will was properly executed as required by the statute. In accordance with that holding the decree of the surrogate was reversed and the case was sent to a jury for trial. That trial having been had, the proceedings are again before us for review.

The evidence adduced upon the trial before the jury changed materially the condition of affairs as they formerly appeared. There were three witnesses to the will. One of them, Mr. Hubbard, had died before the testator. Ho evidence was given upon the trial before the surrogate as to his signature to the will. Hpon this trial, however, the necessary proof was made, pursuant to section 2620 of the Code of Civil Procedure, of the signature of the subscribing witness and of the testator, and of such other circumstances as would be sufficient to. prove the will upon the trial of an action, and that testimony, taken in connection with the testimony of the witness Guy, fully establishes all the facts required by the statute to prove the due execution of the will. In addition, the testimony of the witness Skinner was substantially changed from what it had been on the trial before the surrogate. Upon that trial it was not made to appear with sufficient clearness that Mr. Skinner actually saw the signature of the testator at the time he witnessed the will, but that fact was left in so much doubt that the court did not feel justified in saying that it constituted sufficient proof of a proper execution of the will. Hpon this trial, however, while Mr. Skinner does not swear with great positiveness, yet lie does swear that the last page was spread out before him; that he thinks it was signed, and that the testator declared it to be his will and asked him and the other witnesses to sign it. When he was asked whether his reason for saying that the signature was ¿there must have been chiefly the idea that he would not have taken part in the improper execution of a will, rather than a distinct recollection as to what, he did at the time, he said he should say from memory that the name was there. While this evidence, taken with all the other evidence given by Hr. Skinner and all the other circumstances of the case, was not that of a man who was absolutely certain of the fact, yet it was sufficient, to warrant the jury in finding as to him that, at the time he subscribed as a witness to the will at the request of the testator, it had been signed; that he saw the signature, and that it was declared by the testator to be his will when it was in that condition.

For these reasons, we think the verdict of the jury was founded upon sufficient testimony, and that the judgment must be affirmed, with costs. '

We do not consider the questions raised as to the construction of the will. '

Van Brunt, P. J., Williams, Ingraham and Parker, JJ., concurred.

Judgment affirmed, with costs