36 N.J. Eq. 597 | N.J. | 1883
After careful consideration of the evidence of the subscribing witnesses to this writing, with the desire, if possible, to give effect to the apparent intention of the decedent, I have been unable to reach the conclusion that it should be admitted to probate. The statute of March 12th, 1851, prescribes the formalities to be observed in the due execution of wills and testaments, and unless these appear in some manner, there is no legal sufficiency to devise, pass or bequeath the estate and property of the owner. These requirements differ from those found in the laws of other states, and in the various decisions which have been given, we are likely to be misled, unless these differences, and the exact statements of facts are most closely observed. It is, therefore, safer and easier to interpret the words and phrases of our own law by the usual rules of construction, and apply them to the facts of each case as they may be presented. In making this examination we are struck with the number and particularity of these forms, as if it were the purpose of the law to protect the person who would dispose of property by will, from the possibility of deception or undue influence. By our law, the will and testament (1) shall be in writing; (2) shall be signed by the testator; (3) this signature shall be made by the testator, or the making thereof acknowledged by him; (4) and such writing declared to be his last will in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses, in the presence of the testator. The last clause, relating to the presence of witnesses and the presence of the testator, requires that all shall be together when the signature is made, or the making thereof acknowledged, and when the declaration that it is his will is made. Our earlier statute, passed March 17th, 1714, required that all wills and testaments to devise lands, tenements and hereditaments should “ be made in writing, signed and published by the testator in the presence of three-subscribing witnesses.” This differs from the English statute of 29 Car. II. c. 3 § 5 mainly in the points that while by the latter the will
The expression “ in presence of witnesses,” used in the statute, is there said to be satisfied if the subscribing witnesses were so situated that they could and would naturally see the signing and hear the publishing. The statute of 1851 changed this law, made the acknowledgment of the signature proof of signing, retained the act of publication, in different phraseology, in the presence of two witnesses. The alteration made by substituting “declared to be his last will” for “published by the testator,” does not change the requirement that there shall be some word or act by the testator, or in his presence, by which it may be manifested to the witnesses called to attest that the testator knew, and wished them to know, that he was executing liis last will and testament. Mundy v. Mundy, 2 McCart. 290; In re McElwain’s Will, 3 C. E. Gr. 499.
The words of attestation above the names of the testator and the witnesses in this paper, “ signed and sealed Ac.,” and “ in presence of,” are not proof of publication according to the statute. In Compton v. Mitton and Combs v. Jolley, the court say that the better and safer rule is to require a literal construction of the statute in regard to the publication; and in Allaire v. Allaire, 8 Vr. 312, 325, it is said that, if the attestation clause does not contain all the requisites to the making of a will, affirmative proof must be made of its execution in the manner and with the formalities prescribed by the statute. With this burden of proof resting on the proponents, and with the requirements of the statute before us, we must examine the facts of this case to see whether there has been a due execution of this will. In some points it is conformed to the statute. It is in writing; it is signed by the testator; it is attested by the names of two wit
The case of Inglesant v. Inglesant, L. R. (3 P. & D.) 172, where the will was admitted to probate, most nearly resembles this case in the facts, but the English statute of wills (1 Vict. c. 26 § 9) does not require any declaration or publication by the testator in the presence of witnesses, in addition to the acknowledgment of the signature. But in this case the counsel against the will said that in all the reported cases the testator did some act, or said some word during the proceeding, and cited many authorities for his assertion. The late case of In re Goods of Mary Gunstan, L. R. (7 P. D.) 102 (1882), upon another point is instructive on the question of the sufficiency of an acknowledgment under the statute, and many previous cases are examined. The court say that not only must there be an acknowledgment, within section 9 of the wills act, but the witnesses must at the time of the acknowledgment see, or have the opportunity of seeing, the signature of the testator. But I have purposely avoided other references to cases decided elsewhere, for reasons already given.
Upon another point presented in the argument of counsel it is very certain that the affidavit of James E. Harrison, one of the subscribing witnesses, taken before the surrogate, when the will was propounded for proof before him, cannot have the effect claimed for it, of outweighing the evidence of both Harrison and Miller, who describe particularly the manner of the execution of the will. Where there is a perfect attestation clause, supported by the affidavit of one of the subscribing witnesses, the presumption is very strong in favor of the due execution of the will; but where the attestation clause is defective, as in this case, and from the testimony of both witnesses it appears that the will was not duly executed, the customary formal affidavit of one of them on offering the will for probate is entitled to little weight. The case of Wright v. Rogers, L. R. (1 P. & D.) 678, cited by the proponents’ counsel, was unlike this. There was a full attestation clause, and one of the witnesses had died; the other testified that the will was not duly executed, but the court doubted
The decree of the ordinary will be affirmed and the will admitted to probate, but, under the circumstances, costs of all parties, including a counsel fee of $100 to each side in this court, will be ordered to be paid out of the estate.
Decree unanimously affirmed.