84 A.D. 65 | N.Y. App. Div. | 1903
The alleged will of Leander W. Kaufman, deceased, a resident of the city of Rochester, was admitted to probate 'in the Surrogate’s Court of Monroe county in proceedings had therefor on the 12th day of April, 1899. This action was commenced August 27,1900, by the heirs at law off the said Kaufman to determine the invalidity of the said will pursuant to section 2653a of the Code of Civil Procedure. This section engrafted a new procedure on the practice, for the determination of the validity of wills by action. . As originally passed in 1892 (Laws of 1892, chap. 591), it was construed- by reason of the peculiar phraseology used to-confine the-action to one in behalf of the validity or maintenance of the-will. (Lewis v. Cook, 150 N. Y. 163.)
In 1897 (Laws of 1897, chaps. 104, 701), the section was amended permitting the action to be maintained by “ any person interested as-heir at law * * * or otherwise ” to test “ the validity or invalid
The section provides that the decree of the Surrogate’s Court “ admitting the will or codicil to probate shall be prima faeie evidence of the due attestation, execution and validity of such will or codicil.” The procedure on the trial is prescribed in the section, to the extent so far as pertinent here, that the party sustaining the will “ shall offer the will in probate and rest ” and thereupon the contestants take the case, The onus, therefore, of impeaching the validity of the will is cast upon the contestants. (Dobie v. Armstrong, 160 N. Y. 584, 590; Hagan v. Sons, 174 id. 317.)
Goodman, one of the subscribing witnesses, died before the will was proved in the Surrogate’s Court. Upon that proceeding the other witness, Etz, testified to the due execution of the will, verifying the usual affidavit on such a hearing, and was also examined orally by the surrogate. Henry C. Albee, who had been engaged in a collecting business in Rochester, and knew both Kaufman and Goodman, executed two affidavits, the one certifying to-the genuineness of the signature of Kaufman, the testator, and in the other to the genuineness of the signature of Goodman to the will. The will, decree and the affidavits mentioned upon which the probate was founded were received in evidence without objection and. the effect of this evidence I will refer to later. Albee, who was produced by the plaintiffs on the trial, testified that the signature purporting to be that of Goodman was not genuine; that he did not read the affidavits verified by him in the Surrogate’s Court, but afterwards ascertained their contents and apprised Mr. Werner, one of the counsel who had charge of the probate, that the signature was not that of Goodman and that he did not understand he had so stated in his affidavit. There is a sharp conflict between the witness and Werner on the main items embodied in Albee’s story. Etz, who was also sworn on behalf of the plaintiffs, modified his testimony very materially from that given by him in the Surrogate’s Court. This witness was an old man seventy-five years of age, in poor health, and it may be fairly stated from reading his testimony that he failed to recollect substantially what occurred at the time of the execution of the will in 1890. The instrument propounded it seems was drawn by Mr. Kaufman himself, and the evidence fur
The trial proceeded very largely upon the assumption that it was necessary for Goodman personally to sign his name as a subscribing witness to the will. If the signature had, in fact, been made by Etz at the direction of Goodman and in his’ presence with the usual request and declaration of the testator that would be a sufficient compliance with the statute. A subscribing witness may sign by mark or by another person, the same as the testator himself. (Jessup’s Surr. Pr. 378; Redf. Law & Prac. Surr. Ct. [3d ed.] 169; Lord v. Lord, 58 N. H. 7.) Etz was questioned, however, on this subject and testified on the direct examination: “ I remember Mr. Kaufman’s dictating Mr. Goodman’s address to whoever wrote the name there. If I wrote the name there he must have dictated it to me. I remember his dictating Goodman’s address to the man who. wrote Goodman’s name.” On cross-examination he testified in effect that he was unable to state whether Goodman asked him to sign the will for him or not. If Etz, which seems probable, wrote Goodman’s name in the latter’s presence, either at the request of Goodman or of the testator in the presence of Goodman, this would be a sufficient subscription by Goodman to the will, assuming the other necessary formalities were complied with.
Where there is no question of mental incapacity or of undue influence, and the person supervising the execution of the will is familiar with the requirements of the statute pertaining to such execution, and a. long time has gone by since the transaction and
There are many exceptions taken by the counsel for the appellants to the reception of evidence and also-to the refusals to charge. It is urged quite strenuously that the evidence given by Etz oñ cross-examination to the effect that he believed this was the will of Kaufman when he signed it, was improper. The examination on this subject of the witness’ belief and impression is carried along to undue length by the cross-examine^. but I do not see how the appellants’ counsel can complain because he set on foot this method of examination. Etz was asked on direct examination if he recalled “ suspecting what the paper was at the time you signed it,” which he answered in detail. Again, his affidavit was received-in evidence at the instance of the plaintiffs in which he stated that he suspected that this was the will of Kaufman. This opened the door for the defendants to pursue the subject at any reasonable length permitted by the court. We think the evidence that Kaufman had executed another will a year or two before is competent, accompanied as it was with proof that he superintended the execution of that will and complied with the formalities of the statute. There were several exceptions to the charge taken by the counsel for the appellants which may have constituted reversible error, except for the fact that they were subsequently-'cured by the court. He finally did submit to the jury pointedly whether each requirement of the statute had been complied with instead of limiting it to the question pertaining to the signature of Goodman.
The judgment and order are affirmed, with costs to the respondent.
All concurred. -
Judgment and order affirmed, with costs.