141 N.Y. 152 | NY | 1894
This appeal is from an affirmance by the General Term of an order of the surrogate of Dutchess county refusing to revoke the probate of the last will of Homer A. Nelson. No question is raised as to the capacity of the testator or his freedom from any undue or improper influence, and the whole contest is over the inquiry whether the statutory requirements for the due execution of the will were all observed. That is a question of fact upon which the findings are conclusive unless it appears in the record that there is no evidence tending to sustain them, and our examination of the case must be directed to that inquiry. It may be narrowed still further. The will bears the signature of the testator and the attestation clause those of Baker and Keller, the two subscribing witnesses. There is not the least doubt of the genuineness of all these signatures. It is also certain that they were appended on the day of the execution of the will and before Keller left the room, for he says that Baker put the will in an envelope and took it away at the request of the testator, and at least twelve years thereafter, Baker having died, the will in its envelope was delivered to the testator, who opened the package and examined the instrument and receipted for it as his will. That the testator on March 3d 1878, which was the date of the attestation, knew perfectly that he was engaged in a testamentary act is evident not only from what occurred in his presence, but from his own later statement of the reason which induced him to make his will on that occasion. Baker knew the exact nature of the transaction, for he drew the will and superintended its execution. And Keller knew it, not only from what was said to him, but from his repeated description of the scene as a solemn occasion. The attestation clause was read aloud by Baker in the presence and hearing of the testator and Keller, so that the testator knew what it recited as emanating from him, and *156
the witnesses what it declared as having occurred in their presence. To all that was thus represented to have been said or done by the testator he assented by the approval of silence, if nothing more, and the witnesses knowing its recitals certified to their truth by their signatures. The attestation clause is always some proof of the due execution of the will (Matter of Will ofCottrell,
The proof of Judge Nelson's declarations and acts, occurring after the execution of the will, was admissible to show his knowledge of the testamentary character of the instrument and to dispel any possible claim of mistake or imposition. Similar evidence has often been received, and we can see no ground on which it should have been excluded. *158
Taking all the facts together, they warranted the findings of the surrogate, and leave no doubt in our own minds that the will was properly executed.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.