72 N.Y. St. Rep. 125 | N.Y. Sup. Ct. | 1895
—Judgment affirmed, with costs, on opinion of special term.
The opinion of Mr. ‘Justice Ingraham, at special term, is as follows:
The plaintiff in this action seeks to divert all of the property of the deceased from his relatives, and appropriate it to her own . use, by establishing a will which is not produced, and which is alleged to have been executed within a few days of the 30th of September, 1884; - and the last time there is any satisfactory evidence that this will was in existence was about May 20, 1885, when Mr. Morgan swears he took it out of his drawer, and put it in a safe that he h'ad purchased about that time. It is true
It seems that on or about the 23d day of October, 1891, the testator went into the safe-deposit company, in which he hired a vault, and there wrote out a will, which was, in substance, a copy of the one that Mr. Morgan drew for him, in that he left all his property to the plaintiff; and appointed her executrix. Just why
But the statute also requires that the provisions of a will should be clearly and distinctly proved by at least two credible witnesses. I have no doubt as to the credibility of Mr. Morgan, but the plaintiff in the action stands in an entirely different position. It is somewhat doubtful whether her testimony is not open to the objection that it is in violation of the prohibition contained in section 829 of the Code. The exhibition to her of the will by the deceased, and her reading it in his presence, might well be part of a personal transaction between them ; and if not in violation of the letter, it certainly is in violation of the spirit, of this provision of the Code, which seeks to prevent a person claiming a part of the estate of a dead man from establishing the facts necessary to sustain his claim by his own testimony.. The plaintiff is the sole person interested in the establishment of this wil-1^ by it she will receive a large sum of money; and it would be extremely unsafe to allow a person standing in that position to testify to facts necessaay to entitle her to a judgment against the estate, when the lips of the testator are closed by death, and hence unahle to contradict or qualify the statements that she has made. The statute requires that the contents of the will shall be proved by two credible witnesses; and to accept the testimony of one to whom the property would go by the will, as that of a credible witness to the contents of the will, would overthrow one of the safeguards that the law has established for the prevention of claims of this kind, based upon the testimony of those interested in enforcing the claim. I have examined the cases-cited by the counsel for the plaintiff, but none of them is applicable to the qhestion presented here, except the case of Schultz v. Schultz, 35 N. Y. 653. That case goes a long way towards establishing the sufficiency of the proof as to the existence of this will at the time of the testator’s death. In that case, however, the will was executed less than two years prior to the time of the testator’s death. It was thus comparatively a short time before the testator’s death that the will was in possession of the custodian, and the court states that there is not a scintilla of evidence or circumstances to show that the testator ever had pos