2 Bradf. 244 | N.Y. Sur. Ct. | 1853
The deceased was a widow, and her only next of kin is a daughter residing in the State of Maryland. The will and codicil passed to probate upon constructive service of the citation by advertisement pursuant to the statute. Within a year after the probate, the daughter filed allegations against the validity of the will, and the competency of the proof thereof; and I have now to decide upon the sufficiency of the proof. There are several grounds of objection.
I. Want of testamentary capacity.
The deceased was attacked with typhus fever, and was removed from her residence to St. Vincent’s Hospital, where the will was made, and where she died. Dr. Power, who was her attending physician at the Hospital, and who saw her daily, states that when he first saw her she appeared to be “ very stupid and delirious;” that she afterwards rallied for two or three days, and then relapsed; that after the re
Anne Gorman states that the decedent, the day after she went to the Hospital, spoke “ very sensibly.” She adds: “I saw her every day; sometimes I spoke to her, and she would answer me, and fall away again.” Mrs. M’Ginnis nursed the decedent at the Hospital two weeks, night and day. She testifies that Mrs. Kerr was in a “ kind of stupid state” all the time,— occasionally sensible for a short while. “ Sometimes she would talk a little; but it would not be long, and then she would go off into a slumber again.” She “ might be sensible half an hour at a time.” “ She was not able to sit up, three or four days before she died, unless she was propped up in bed. She could not help herself. She never took her drinks into her hands, but I put them in her mouth for
Dr. Murray, who visited the decedent in consultation with Dr. Power, says: “ She was rather in a state of insensibility—the state in which persons usually are just previous to death. It was the day previous to her death. I was desirous of seeing her again, and called the next day, but was told she was dying, and did not go in. She showed a listlessness, and appeared unconscious of what was said to her. She had all the symptoms of a sudden dissolution when I first saw her.” Mrs. Morton testifies that the decedent was taken sick on the 1st of May ; was taken to the Hospital on the 5th, and died on the 20th. She visited her there daily, and generally two or three times a day. She says, “ I think it was about ten days before she died that I first thought she was at all unsettled in her mind. At the latter end of her sickness, before she died, her mind seemed to be affected—she seemed to be stupid. It was three or four days before she died, she got quite stupid. When she was sick in Second street, she dozed a good deal through the day. She would doze and fall asleep in the day time, after she went to the Hospital, while I was there ; but that was at the latter end.” Mrs. Morton mentions some conversation she had with the decedent. “ I asked Mrs. Kerr if I should write to her daughter. She said, Mo, the poor child would hear of her death time enough.” * * “ She told me one day she was after making her will. She told me to tell my husband not to let any of the apartments, for it was to be sold. I asked if I should call to let Father Kein know how she was, as he was rather delicate. She said he was after being there ; was going out a bit into the country, and she said I need not call there. I mean by her saying she was after making her will, that she had made it. I went in the next day, and took some clothing to her. She gave me $47, and the keys of her bureau and the keys of the house where she lived, &c. I asked her
This is substantially all the evidence relative to the capacity of the decedent, exclusive of the testimony of the subscribing witnesses to the will and codicil.
II. The time of execution.
The will and codicil are not dated. The time of their execution is material. Mrs. Horton states that when the decedent spoke to her about her will, it was seven days before her death. Elsewhere she says, she died about seven days-after the money and keys were given to her. Again she says, “ She told me this on Tuesday, and the next day (Wednesday) she gave me the keys. This is as near as I can think. It was on the previous Wednesday she left Second street.” * * “I think she died Thursday, as near as I can recollect.” Mrs. Horton elsewhere states that the decedent died on the 20th of May. The original petition for probate dates her death on the 21st, which was Wednesday. Mrs. Norton says, Mrs. Kerr went to the Hospital on Wednesday, but also fixes the date on the 5th of May, which was Monday. Ho great dependence can, therefore, be placed upon her exact recollection of precise dates. How, on the other hand, Mrs. McGinnis, the nurse, says the will was drawn three or four days before Mrs.
III. Proof as to execution.
It is not impossible that a person in such a condition might, on being aroused from stupor, be capable of sensible action"; but the proof to establish that such was the fact should be of the clearest character. Smyth, one of the subscribing witnesses, never saw the decedent except at the times the will and codicil were attested by him. His recollection of the transaction is evidently imperfect. He states that both papers were read to the decedent by Father Kein, and that she signed them; but he is unable to state whether she wrote with assistance or not. He says that after the will was read she “ agreed ” to it; and though he does not recollect exactly the words, thinks she said it was all right. He states that no one else was present, while Father Kein testifies that Mr. Phelan, one of the executors, was there. He says that she received no help from any person while he was in the room, and that “ she raised herself;” and Father Kein states that he “ assisted her, raised her in the bed, and supported her when she signed the will.” At one time he says he was requested by Father Kein to witness the will, and the decedent heard the request ; and again, that nothing was said about witnessing the will before Mrs. “Kerr. What transpired in the presence of this witness was not of a nature to afford a very accurate test of the capacity of the decedent; and it is obvious that very little dependence can be placed upon his recollection of the circumstances.
The will in question is written on the first and second pages of a sheet of letter paper. It closes on the second page, and purports to be signed and attested in this way:
*254 “ To the children of Mary Dow, residing in Ireland, in county Kilkenny, Give and bequath two Hundred dollars, to be equally divided between them. If there be a balance my executors will divided it among my relations that are not herein mentioned.
“ Catherin Keer.
Phelan,
“ I herby appoint Mich’1 of 2d st., and John Kelly, of 9th st., as my executors to this my. last will testament. “ Witnesses, R. Kekt,
“ Mathew M. Smith.
pay
“ I herby order my executors toA all my lawful and debts & funeral expenses—should it please the Almighty now to call me. This they will do before paying any legacy above mentioned.
“ Cathe Keer.”
Now, Smyth says he thinks the decedent signed the will but once, and that Father Kein wrote nothing on the will after she signed it—that her name was not signed to any part before he came into the room, and he saw her make the first signature. There was nothing written below the place where he put his name as a witness, when he signed. He says, “ The second signature (of the name of Mrs. Kerr) I am doubtful about—I don’t consider it the same hand as the first, and I don’t recollect seeing her sign it.” Mr. Smyth here differs materially from the other witness, and on an important point. Father Kein states that he wrote the will at the dictation of the decedent—that when she signed it he supported her body and her arm above the elbow —that she wrote both the signatures on the second page— she was perfectly sensible—he did not take told of her hand and guide it, and did not write her name—all on the first two pages was written before she signed it—after she
IV. Form of the will.
But, independently of these considerations, there is another objection which of itself I deem fatal to the will. The statute directs that the will shall be subscribed by the testator “ at the end,” and that each of the witnesses shall sign his name “ at the end of the will.” The same place is here spoken of—the end / and the testator and the witnesses must all unite in authenticating the instrument at its point of completion. I do not mean to refine as to the exact place where they are to sign; but the object of the law has been not only to exclude a signature at any other part, but