3 Bradf. 35 | N.Y. Sur. Ct. | 1854
The first objection to the probate of the will relates to the manner of execution. The testatum clause does not recite a testamentary declaration, and it is urged that for this reason, proof of a testamentary declaration having in fact been made, is incompetent. I think otherwise. The statute does not require an attestation clause. The question is whether all the proper ceremonies were performed. If they were, and the witnesses prove it, the requisitions of the law are answered. The omission to recite at the end of the will any or all of the prescribed forms, cannot affect the validity of the instrument, because the recital is not required. If the omission does not invalidate the instrument itself, I do not perceive why it should affect the proof of it. But it is said the testamentary declaration proved was not made at the time the testator subscribed the will. That he declared the instrument to be his last will and testament there can be no possible question. Mr. Wade says, however, that this declaration was made before he saw him subscribe the instrument. According to his statement, the course seems to have been this—the will was lying upon a table by which the decedent was seated—he took it up, introduced the subject, spoke of the defective execution of the will of Thomas Lewis, which had then been
The will bears date the twelfth day of November, 1851, and the testator died on the sixteenth day of March, 1852, aged ninety years. His testamentary capacity is not controverted. Indeed, a prominent cause of complaint on the part of the contestant, is that he was improperly prevented from altering his will, or making a codicil, just previous to the close of his life. There is not only no evidence impeaching his mental vigor, but there is positive proof that his faculties were in an excellent state of preservation.
He had lived with his daughter, Mrs. Effie Simmons, a widow with two sons, for about six or eight years—or rather they had lived with him, he paying the household expenses. He left her an annuity of two thousand dollars, and the use for life of the leasehold dwelling house in Franklin-street, where he resided, and a cottage in Williamsburgh. On her
TTis son William collected his rents in Williamsburgh, and seems to have had the free use of them. The testator gives to William absolutely three lots with two dwelling houses thereon in Williamsburgh, and then after providing for the support of his brother, cancelling all claims against his son, his daughter and her son William, and giving his son and daughter an equal interest in his furniture, books and family vault, he left the entire residue of his estate to his son William. This is undoubtedly an unequal will, preponderating very largely in favor of one branch of the family.
On the day of the execution of the will, the testator, in company with his daughter, proceeded to his son’s house in Williamsburgh, and during Mrs. Simmons’ temporary absence, the will was executed in the presence of the son and two witnesses called in by the son. The will is in William’s handwriting. In viexv of all the circumstances it is very proper to look for evidence outside of the will indicating a recognition of its contents by the testator.
In the fall of 1849, the testator made a will, which he had draxvn xvith his own hand. He stated to Henry Simmons that he had been making a n,ew will—that his son-inlaxv, Mr. Strong, had read a former will, and he was dissatisfied. It is manifest from other evidence that he desired to keep the contents of his will secret. That this will of 1849 did not provide simply for a division of his property betxveen his txvo children, seems probable from his statement “ that he had been careful about making his will, he had taken a good deal of time to think it over, and he hoped it would be thought a just will.” Kobert Jones testifies, that in the summer of 1851 the testator told him he “ had drawn his will himself, he had made William Leayeraft and William Simmons his executors—had provided for his brother John during his life, and that he should be buried in his vault.” How far, in other particulars, the will of 1851 agreed with that of 1849 cannot be determined. One respect
The testator’s mind and memory appear to have been in good condition. I think there is sufficient evidence to show that he knew the contents of his last will, and it is observable that when William rehearsed to him the Saturday before his death what provisions he had made for his daughter, he expressed neither surprise nor dissent. Indeed, the very desire he indicated so earnestly to give her “fast property” implies knowledge of the manner in which he had limited her interest.
It appears, as already stated, that on the Saturday preceding his death, the testator told his son William he wished to alter his will, so as to make more favorable dispositions for his daughter. At this time he directed William to bring the will the next day, which he agreed to do. He did not come
There can be no doubt that for several days before his decease Mr. Le ay craft was anxious to modify his will in favor of his daughter, and was led to postpone doing so by the expectation of obtaining the will, so as to accomplish his purpose with more precision. The conduct of the. son is sought to be excused on the ground that he had reason to fear
The civil law had very wise provisions to meet such a .case, declaring the testament null with respect to him who hindered its revocation. This was on the ground of an offence against the testator—as attempting his life, procuring his death, failing to prosecute the authors of his death,'attempting anything against his honor, treating for the succession without his knowledge, hindering him from making a testament or codicil, or revoking them—all of which were causes for declaring the heir unworthy, and excluding him from participation in the property of the deceased. (Digest, lib. 29, Tit. 6, § 1, 2, 3. Domat, Strahan’s ed. § 2546, 2561, 3153). Says Do-mat, “We ought to reckon among the number of dispositions that ought to be annulled, that which a testator, being desirous to revoke, had been hindered from doing it by violence or some other unlawful way, on the part of those who were to reap advantage from the said dispositions: for with respect to them, they, by rendering themselves unworthy of the said dispositions, would render them null.” Our statute has undertaken to prescribe the mode in which wills can be
The testimony of Mr. Strong discloses somewhat of the testator’s intentions and motives, and in that connexion I have not failed to consider carefully the state of the decedent’s dispositions towards his grandchildren. But it is so difficult to place oneself in the position of another, observe the facts and circumstances on which he reasons, and understand and appreciate his motives, that it is dangerous to speculate in regard to the probability of his making his will in a particular way, unless under a very full and clear knowledge of every thing that might have influenced the testator’s mind. And, even then men do not always come to the same conclusions upon the same facts. Circumstances which with one 'would lead only to securing to one branch of a family their equal share in trust, with another person may lead to a diminution of the share and an increase of the portion of others. It does not seem of any use to consider circumstances of that kind in the present instance. Where the testator’s faculties were clouded, or much doubt exists, resort may be had to that class of probabilities, for want of a better guide. But