Peck v. Cary
38 Barb. 77
N.Y. Sup. Ct.
1862
Check Treatment

Lead Opinion

Leonard, J.

1. We can find nothing in the proof, or in the provisions of the will, to warrant the conclusion that the testator’s own mind was not fully and freely expressed.

2. The person who drew the will called the subscribing witnesses from an adjoining room, in the presence and hearing of the testator, who had already affixed his signature, and requested them to witness the will. There is no evidence showing any want of consciousness or intelligence of the testator, sufficient to incapacitate him from performing the act in question at this time. He said nothing in words, but sufficient transpired to show that he understood the business in which he was engaged. What was said by Mr. Morgan must *79be considered as said by the testator. He heard it, saw the witnesses come into his presence, and there sign the instrument as witnesses of its execution by himself. He gave no sign of dissent, but carried out the execution in the manner indicated by the request of Mr. Morgan to the witnesses, made in his hearing and presence. If the testator had been the speaker himself, and addressed the same language to the witnesses which was used by Mr. Morgan, in his hearing, there can be no doubt that within the case of Coffin v. Coffin, (23 N. Y. Rep. 9,) it was a sufficient acknowledgment and publication of the will, and request to the witnesses.

[New York General Term, November 3, 1862.

What was said by Mi-. Morgan was adopted by the testator as his own act and language. I think the whole proceeding, on the occasion of the execution of the will, warrants this conclusion.

The decree appealed from should be affirmed with costs.





Concurrence Opinion

Ingraham, P. J.

I concur in the above decision, not because the provisions of the statute have been complied with, but because the decisions of the court of appeals, on similar questions, render a contrary decision unavailing. The statute, I think, requires something more than a mere silent acquiescence in what a bystander Says.

Barnard, J.

I think the decree of the surrogate should be reversed, and the matter sent before a jury to try the competency of the testator to make a will.

Decree affirmed.

Ingraham, Leonard and Barnard, Justices.]