Public Administrator v. Watts

1 Paige Ch. 348 | New York Court of Chancery | 1829

The Chancellor:—The barrenness of our books on the subject of testamentary law has compelled me to bestow much labor upon the investigation of this case, and much time has been employed in obtaining those books which were necessary to be examined by me before I could, in justice to the parties in this cause, bring that investigation to a close. It is but a few years since any thing like regular reports of testamentary causes were attempted even in England, and in this state not more than half a dozen cases are to be found in the forty-six volumes of our own reports, and very few in the reports of our sister states. Before the revolution, the colonial governors claimed and exercised the prerogative of deciding all testamentary cases, upon the principles which governed the ecclesiastical courts in the mother country. Since that period, the same jurisdiction has been conferred upon the local surrogates, who have proceeded in such matters without much form or system. Although an appeal was given to the judge of probates, very few causes were brought before that court; and it is understood that even there nothing like regular rules of practice were ever adopted. The testamentary law of England, as it existed at the commencement of the revolution, was recognized by the first constitution as the law of this state, and very little alteration has been made in it since, except as to the tribunals in which it was to be administered. Devises of real estate, both here and in England, being regulated by statute, and the ecclesiastical courts there having the exclusive cognizance of wills of personal property, to ascertain what the law was before the revolution, we are obliged to resort to the recent reports of adjudged cases in England since that time; to elementary writers; to the few cases brought before the superior courts of appeal, scattered through several hundred volumes of common law and Chancery reports, and to a small number of adjudged cases which took place after the statute of 32 Henry 8, allowing a devise of real estate, and before the statute of frauds and perjuries, (29 Car. 2, ch. 3,) which required wills of real estate to be executed in the presence of three witnesses.

The testamentary law of England was derived from the civil law, and was probably introduced into that country by the ecclesiastics and civilians who came thither with William the Conqueror, or soon after. By the civil law the will of an ordinary person might be in writing, or by parol; but in either case it was necessary to the validity of the testament, that seven witnesses should be present at the making thereof. (Domat, book 3, tit. 1, sec. 3.) Testaments of this description, however, are unknown to the law of England, and were never in use there. But the civil law being introduced into England at the time when the military system was at its height, another species of wills, authorized by the Roman law to be made by officers and soldiers of the army, called military testaments, was adopted, and applied to the testamentary dispositions of every person, whether he belonged to the army or otherwise. (Gilbert’s Rep. 260.) This was at a time when, by the feudal system of military tenures, real property was not devisable.

Ho particular form was required for a military testament, but the testator might declare his will in such manner, as the conjuncture in which he happened to be enabled him to do it, provided his intention appeared by good proof. (Domat, book 3, tit. 1, sec. 2, art. 15.) Thus a military testament might be made orally by the testator’s declaring his will in the presence of witnesses, which was called a nuncupative will; or it might be in the form of a written memorandum or declaration of his wishes respecting the disposition of his property after his death, written by his own hand and signed by him, or written by another and gjgneq by the testator, or reduced to writing in the presence of witnesses, either by the testator or at his request. Domat after describing these several kinds of testaments, and objeeting to the nuncupative will on account of the facilities it afforded for fraud, says, “ The second kind of testament, written and *signed by the testator, or written by another hand and only signed by him, has not the same inconveniences in it; for the writing is a sort of authentic proof in its own nature, and which would be sufficient to oblige a person even beyond his estate. So, that if a military testament ought to be dispensed with as to the forms, it would seem to follow, from this principle, that it may be sufficient to observe therein a formality, which of its own nature is a perfect proof that he who writes and signs any act, wills and approves that which he has signed; and this is such a proof as suffices in many places for ordinary testaments.” Judge Blackstone, in his commentaries, (2 Bl. Com. 501,) says, “A testament of chattels written in the testator’s own hand, though it has neither his name or seal to it, nor witnesses present at its publication, is good, provided sufficient proof can be had that it is his handwriting.” Eor this he cites Godolphin’s O. L. and Gilbert’s Reports. And Loveless has copied this sentence from Blackstone without any explanation. (Lovel. on Wills, 160.) I have not been able to find the Orphan’s Legacy; but on referring to Gilbert, the report does not warrant the broad language used by the learned commentator. The passage referred to is as follows; “Even since the statute, if the will be made of goods, and written in the party’s own hand without any witnesses at all, it is allowed to be good; but it is not a nuncupative but a written will, and the statute does not require any witnesses to wills of chattels only.” (Gilb. Rep. 260.) But from what immediately follows, it evidently could not have been the intention of the writer to declare such a will good, without being signed by the testator, or some other evidence of the animus testandi; for he adds, “But there were many inconveniences found after this statute of Hen. 8, (statute of wills,) for men would set up papers that were not signed by the deceased, and would get witnesses to swear to the publication of it; and this was easily contrived and construed, since there were no solemnities required at the publication of it. If any preparation was made for a will, they would get witnesses, after the decease of the party, to swear to the publication of it; and often old dormant wills were set *up, and the latest wills were smothered by such contrivances.” The writer of the Touchstone, (supposed to have been Mr. Justice Doddridge,) before the statute of frauds, also says, “ A written testament, when it is written with the testator’s own hand, doth prove and approve itself, and therefore needs not the help of witnesses to prove it; and for this cause, if a man’s testament be written fair and perfect with his own hand, after his death, albeit it be not subscribed with his name, sealed with his seal, or have any witnesses to it, if it be known or can be proved to be his hand, it is held to be a good testament and a sufficient proof of itself; but if it be sealed with his seal and subscribed with the name of the testator, and can be proved by witnesses, it is the more authentic.” (Shep. Touch. 408.) But even there the succeeding remarks of the writers show that other circumstances must be resorted to in such cases to establish the animus testandi.

It was undoubtedly on the same principle upon which formalities were dispensed with in favor of military persons by the Roman law, the necessity of the case, that the English civilians, after the statute had required all wills to be in writing, admitted instructions for a will or an unfinished testamentary paper to probate, although the testator intended other solemnities should be observed before it operated as a will, in cases where by sudden death he had not a reasonable time to execute the will in the intended form.

This principle was applied to a will of lands, in Browns' case, (Keilway, 209,) soon after the passage of the statute 32 Hen. 8, authorizing devises of real estate by will in writing, and before the act of the 29th Charles 2, which required such wills to be executed in the presence of three witnesses. The case was this: the testator being sick, sent for a scrivener to draw his will. When he arrived, he took down game notes of the will, as directed by the testator, and immediately went to his own house with the written notes, and drew out the will of the testator in form agreeably thereto, and finished it before 12 o’clock and went to the testator’s house to deliver it to him; but on arriving there half an hour afterwards, he learned that the testator died at 12 o’clock; and in an action between the heir and devisee, it was held by all the justices *that it was a good will of real estate under the statute. This case is stated substantially in the same way by several cotemporary reporters. (Anderson’s Rep. 34; Benl. & Dal. 61; 1 Dyer, 72.) The same principle is recognized in a note to Griffin v. Palmer, (Brownlow’s Rep. 44;) and in the case of Hinton’s will, made in the 2d year of Edward 6, decided in the court of wards in the reign of Queen Elizabeth, (1 Dyer, 72, b.) In Stephens v. Gerrard, decided in the 18th year of Charles 2, (1 Siderfin, 315; 2 Keble, 128,) where it was shown that Sir E. Worsley dictated a writing made by a third person, and caused it to be interlined, and said he intended to write it over again himself, but in the meantime it should be his will, but refused then to sign or publish it as such, and there was an attestation clause stating that he had put his hand and his seal to every sheet, but he had not done it to any, yet it was held a good will. And in Dime v. Munday, in the 20th Charles 2, in K. B., (2 Keble, 345; 1 Siderfin, 362, S. C.,) where the testator declared that the lessor of the plaintiff should have the premises in question, and the attending physician put it in writing, and the testator was asked if he approved it, and he said aye and sealed it, but did not subscribe his name thereto, it was held a good will, and the plaintiff recovered. So in the case of Rolph v. Hampden, which was before the statute 32 Hen. 8, (1 Dyer, 53 b,) a paper writing, without subscription or seal, proved by one of the witnesses thereto, was held a valid will of lands devisable before the statute of wills. It was in that case also holden that a will of lands need not be in writing. Wills of personal property, under the English statutes and our own, stand upon the same footing as devises of real estate did after the statute of wills and before the statute of frauds. These cases are therefore important to show what was the law of England as to wills of personal estate at the time of our revolution.

The importance of the principles involved in this case has induced me also to examine all the reported cases on the subject of informal, imperfect, unfinished or unexecuted wills of personal estate which have been decided in England since the statute of frauds. And with two or three exceptions, *which will be hereafter noticed, I find certain settled and uniform principles running through all the cases; or, at least, governing the decisions in those cases which are reported with sufficient accuracy to enable me to ascertain the grounds upon which the decisions took place. The distinction recognized in these decisions appears, to be between those cases where from the inspection of the testamentary paper, or from the positive testimony of witnesses, or circumstantial evidence, it satisfactorily appeared that the decedent intended the same to operate as his will, without any further act on his part, or the addition of any other formalities, and the cases where some other act or formality was supposed necessary was intended to be done or observed.

The first class of cases may be denominated imperfect or informal wills. They are to be carried into effect notwithstanding any lapse of time between the making of the same and the death of the testator, unless there is legal evidence of revocation, or the lapse of time, in connection with his acts and declarations, are sufficient to satisfy the court that the paper was deliberative only, and never was considered final by him.

The second class may properly be styled unexecuted or unfinished wills, in the progress of completion, and which t]le decedent intended should be his will, when completed and executed with all the further solemnities which were contemplated by him. In these cases the will is invalid unless completed within a reasonable time. But if he is prevented from completing the will in the intended form by the act of God, before he has a reasonable time for that purpose, and dies before another opportunity occurs, probate may be granted of the unfinished paper; such as a draft or instructions for the intended will.

The first case I have been able to find is Strish v. Pelham, (2 Vern. 647,) which belongs to the last class of cases. In 1686, the testator sent for a scrivener to make his will, who took it down in characters from his mouth, and it was read to and approved by the testator. The next day the scrivener brought the will properly drawn up for execution ; but the *testator, who had then become insensible, died in that state; and it was holden a good will.

The anonymous case before the delegates in 1704, (cited in Com. Rep. 453,) is not stated with sufficient certainty to enable me to ascertain upon what principle it was decided.

The case of Powell v. Beresford, before the delegates, in 1707, (2 Ld. Raym. 1282,) belongs to the first class. The decedent wrote a testamentary paper, which on its face was declared to be his last will for fear of mortality, till he could settle it more at large; by which he, gave a legacy for 1,0001 charged upon his real estate, and subscribed his name to the paper and gave it to the legatee. About a fortnight before his death, he declared he had left with the legatee unquestionable security for the 1,000l., which he had done for fear of mortality, until he could make a complete will, which he intended to do as soon as his wife was brought to bed. He died suddenly, two months after writing the will, while his wife was lying in; and it was admitted to probate.

The particulars of the case of Wright v. Walthoe, in 1710, (Com. Rep. 452,) are not stated with sufficient certainty to enable me to understand the principle on which the decision was made. But Warlich v. Pollett, which came before the court of delegates the next year, (Com. 452,) clearly belongs to the last class of cases. It was an unexecuted will written in extremis, the execution of which was prevented by the death of the testatrix before the witnesses, who had been sent for, arrived. The case of Brown and Heath v. Pocklington, in 1721, (Com. Rep. 453,) was probably a case belonging to the same class with the last. From the loose statement of the case of Loveday v. Claridge, in 1730, (Com. 452,) it is impossible to determine to which class it properly belongs.

In the case of Habberfield v. Browning, in 1773, (4 Ves. 200, n,) the testatrix sent a letter of instructions to her attorney to draw up a will, but on the face of the paper it appeared that she intended the letter to operate as a will if she died before a formal will was drawn up, and for which further instructions were to be sent by her. She died a few months after the letter was sent, and before the will was drawn up. *The delegates pronounced in favor of the letter, as being intended as an absolute will if she died without making any other.

The case of Cobbald v. Baas, (4 Ves. jun. 201, note,) is one of those to which I have before alluded as exceptions to the general current of authority. It was decided in 1781, and is not therefore to be considered binding here, although it was for a time considered so in England. It bears a strong resemblance to the case now under consideration, except that the signature of the testator was there affixed to the will. It was a perfect will of real and personal estate, except that a blank was left for the day and month in the date. The usual attestation clause to wills of real estate was added, but there were no subscribing witnesses. The whole was in the handwriting of Savage, the testator. The judge of the prerogative court pronounced against this paper; but on appeal to the delegates, Sir W. H. Ashurst, Baron Hotham and Dr. Macham, it being a will both of real and personal property, they "decided that it was ren. dendo singula singulis a perfect disposition of the personal estate; and they reversed the decision of the prerogative court.

Doctor Adams, in a note to Beatty v. Beatty, (1 Adams, Rep. 159,) says, the doctrine of the ecclesiastical courts from an early period, until the decision of the delegates in Cobbald v. Baas, respecting testamentary papers with attestation clauses, but not in fact witnessed, was that extrinsic evidence must be given to rebut the presumption of law against the will, and to show that the testator intended it to operate in its present state without being witnessed. That decision, however, for some time governed the courts of probate, averse as they were to consider it settled law. But after the decision of the court of review, in Matthews v. Warner, in 1799, they reverted without scruple to the old doctrine of those courts, which has uniformly been adhered to in subsequent instances. He also adds, “the judgment of the court of delegates in Cobbald v. Baas, is now held not to be law.”

In Griffin v. Griffin, decided in 1790, where the decedent began a testamentary paper, but being called away to dinner, he locked it up, and nine days afterwards died suddenly, *the questions were whether this unfinished paper was a revocation of a former will, or whether it was to be established conjunctively with the former will. It was determined that the unfinished paper could have no effect. That the testator having lived eight days in health, without finishing it, the presumption of law was that he never meant to finish it. In reference to this case, Lord Lough-borough says, “one great principle in the testamentary courts, as to imperfect papers is that if the testator declares an intention as to property, and has time afterwards to put that in writing, and does not, the presumption is, either he had not made up his mind, or that he had abandoned the intention.” (5 Ves. 644.)

Again; in Coles v. Trecothick, (9 Ves. 249,) Lord Eldon says, “ The observation is just, that, as to the personal es-tote, if it appears upon the will that something more is intended to be done, and the party was not arrested by sickness or death, that is not held a signature of the will which purports that there should be a further act.”

In 1796, the Master of the Rolls thus expresses his dissatisfaction with the practice of the ecclesiastical courts which had then been adopted in consequence of the decision in Cobbald v. Baas: “ I concur in the opinion dropped at the bar, that it is now almost absolutely necessary that the legislature should come to some regulation as to the forms necessary for wills of personal as well as real estate, from the habit the spiritual court has got into of granting probate of all the loose papers that can be found, and sending them to the Court of Chancery to be construed.”

In 1798, this objectionable precedent was again followed by a court of delegates in the case of Matthews v. Warner, (4 Ves. 194,) in which case two unfinished testamentary papers, both in the handwriting of the testator, dated and signed with his name, were admitted to probate, notwithstanding the testator lived five or six years after their date; but on an application to the king in council for a commission of review, the question was referred to the Lord Chancellor. In conformity to his opinion, a commission was issued to Beilby, bishop of London, Lord Kenyon, chief justice, and Lawrence, a junior justice of the court of King’s Bench, McDonald, *chief baron of the Exchequer, Sir William Scott, judge of the court of admiralty, Rooke, one of the justices of the Common Pleas, and two doctors of the civil law. In November, 1799, this court, consisting of the most distinguished judges and civilians in England, reversed the decision of the delegate, and restored the testamentary law of that country as it existed both there and in this state at the commencement of our revolution.

The same year the case of Stakes v. Percy (cited 1 Meriv. 512, was decided upon the will of Mary Collett. She made her will of real and personal property, dated in 1796, all in her own handwriting, and subscribed her name, but did not seal it. An attestation clause was added, but it was not witnessed. She died suddenly three years after. The will was found locked in a chest of drawers, enclosed in a piece of paper, on which was written, in her own hand, “Mrs. Col¡ett’s will.” And yet this testamentary paper was rejected.” I presume upon the ground that she originally intended it to be executed in such a manner as to convey real estate as well as personal, which she had abundant leisure to have done; and that there was no evidence that she had altered that, intention, or recognized it as her will of personal property only, in extremis.

So in Hammond v. Hammond, decided in 1801, (1 Meriv. 513,) a will of personal property only, made four years before the death of the testator, all in his own handwriting, but neither signed nor witnessed, was rejected. Then followed the case of Wade v. Overton, (1 Meriv. 513,) where the testator wrote a will of real and personal property commencing thus: “I, A. B., do make this my will, all in my own handwriting,” &c. A seal was affixed to it, but it was signed only on the first sheet, and was not executed in the presence of witnesses. As all the personal property was mentioned in the first sheet, the legatees insisted that the signature was intended to apply to that species of property only; but the court held the will must be taken altogether, and construed as a whole. It was therefore disallowed.

The case of Painter v. Painter, decided in 1802, (Meriv. 512,) was on a will on real and personal property made *by an attorney, written with the testator’s own hand. It was signed and sealed, and had a clause of attestation, but no witnesses. It was kept locked up with other papers of moment. He died suddenly, and this will was rejected.

In Walker v. Walker, in 1805, before a court of delegates composed of three common law judges and five doctors of the civil law, (1 Meriv. 503,) where the testatrix made a will of real and personal estate, and signed and sealed it, and a clause of attestation in the common form was subjoined but not witnessed, and her will was found at the death in an envelope, on which was written, “ I signed and sealed my will to have it ready to be witnessed the first opportunity I could get proper persons,” it was decided the will was not good as to the personalty.

From several of these last cases it would appear that the prerogative court intended to adhere to the principle that a testamentary paper, purporting to dispose of both real and personal estate, if it is not on its face a perfect and finished will of personal estate, shall not, from any extrinsic circumstances, be presumed to have been intended by the testator to take effect as to that part of the property only, when it could not be made operative as to the whole.

In Scott v. Rhoades, in 1809, (1 Phil. Rep. 12,) a will of personal property only of Thomas Burchall, a clerk in the Bank of England, who resided by himself, found very much in the situation of the will under consideration, that is, with a blank for the day of the month, with an attestation clause and seal affixed, ready for execution, but not signed or witnessed, was admitted to probate, on the .ground that its execution had been prevented by the act of God. But there it appeared on the face of the will that it had been written within a few days previous to his sudden and unexpected death; and there was other evidence from which it was inferred, that he actually intended to have executed it the very day on the morning of which he was found dead in his room. The language of Sir John Nichol in this case shows the strictness of the testamentary courts, where it is attempted to establish unfinished or unexecuted -wills on the ground that the testator was prevented by the act of God from executing them with *all the formalities originally intended. He says: “My predecessors in this place have held the rule strict that the proof must show a continuance of intention, and that the deceased was prevented from completing the instrument by the act of God. It is my duty to tread in their steps, and to adhere to those principles which they have laid down. I am not at liberty to depart from them in any instance, if I were so inclined; but there is no point upon which I should be less inclined to do it than upon that now under consideration. I am strongly impressed with the necessity of applying the rule strictly and with firmness.”

From the commencement of Phillimore’s Reports, in 1809, to the present time, there is a regular series of reported cases in testamentary matters in England. Although I have carefully examined all those cases down to 1825, which have a. bearing upon that now before me, I have found no material departure from, the principles established in the previous adjudications. I shall therefore content myself with barely referring to such cases in their chronological order: Sandford v. Vaughan, (1 Phil. 48, 131;) Green v. Skipworth, (id. 53;) Devereaux v. Bullock, (id. 60;) Bone v. Spear, (id. 345;) Wood v. Wood, (id. 357;). Carstairs v. Pottle, (2 Phil. 30;) Read v. Phillips, (id. 122;) Monro v. Coutts, (1 Dow’s P. C. 437;) Huntington v. Huntington, (2 Phil. 213;) Sikes v. Snaith, (id. 351;) Satherthwaite v. Satherthwaite (3 Phil. 1;) Thomas v. Wall; (id. 23;) Musto v. Sutcliffe, (id. 104;) Lewis v. Lewis, (id. 109;) Friswell v. Moore, (id. 135;) Strauss v. Schmidt, (id. 209;) Buckle v. Buckle, (id. 323;) Boyle v. Maine, (id. 504;) Forbes v. Gordon, (id. 614;) Roose v. Moulsdale, (1 Addams, 129;) Beatty v. Beatty, (id. 154;) Pople v. Cunison, (id. 377;) Warburton v. Burrows, (id. 383;) Antrobus v. Nepeau, (id. 399;) Lavender v. Adams, (id. 406;) Doker v. Goff, (2 Addams, 42;) Montefiore v. Monteofire, (id. 354;) Allen v. Manning, (id. 490.)

The few testamentary cases which appear in the reports of our own country, tend to confirm the principles of the decisions above referred to from the other side of the Atlantic. (2 Nott. & McCord, 531; 2 Marsh. Kentucky Rep. 71; 1 Serg. & Rawle, 263; 12 Mass. Rep. 534.)

*In the case under, consideration, the decedent was a lawyer and well understood what formalities were necessary to make a valid will. Possessing a large real and personal estate, and without any natural relations, to whom either could descend in case of an intestacy, he had no object in making a will of the one without the other. Under such circumstances, twenty-seven years before his death, and while Ids bodily and mental powers were in full vigor, after providing for the support of the widow of his deceased brother, the only relative who had any particular claims upon his bounty, and giving a few pecuniary legacies to his executors and others, and to the church at which he worshipped, he determined to adopt the child of his old friend and fellow student as the heir to his overgrown property ; and to bestow the whole on him, on condition that he changed his name, and assumed that of the decedent; intending, no doubt, that he should raise up a family to perpetuate the name of Leake. For this purpose he prepared the will in question, ready for execution; precisely as he would have prepared a similar instrument to be executed by a client. From the appearance of this paper there can be but little doubt that in the year 1800, when the will appears to have been written, Leake had fully made up his mind to dispose of his property in the manner indicated by that instrument. But the question here is not what he then intended, but what he actually did. Whatever may have been the cause why the will was not then executed, it is morally certain he did not at that time intend it should take effect, in its unfinished state, as a will of his personal estate merely; leaving his real estate, which at that time probably constituted the bulk of his property to escheat.

The inquiry is not, whether at any time since he prepared that will, he intended to die intestate, but whether at the time of preparing this paper, and at the time of his death, he intended to dispose of his property by that instrument in its imperfect and unfinished state. The respondents rely upon the fact, that Leake went to his iron chest about two weeks before his death, and took therefrom certain papers which he destroyed, and left this paper there, as evidence that he intended it to operate as a will of his personal es-tote. But from *the testimony produced before the surroga£e¡ ^ jg extremely doubtful whether he saw it at that time. It was lying between the leaves of a field book, which he would not be likely to inspect on such an occasion. it may have laid there, unnoticed, ever since 1806, when the last memorandums appear to have been made in that book. If his attention had been called to this testamentary paper at a time when, with a view to his approaching dissolution, he was probably destroying mementos that affection had preserved, and which should not be left for the inspection of strangers, I think he would either have destroyed this paper also, or have left some memorandum thereon, showing what were his wishes in relation to its effect as a will of personal estate.

Although an actual signing of a testamentary paper may not be necessary to constitute a good will of personal property, yet the evidence of authenticity derived from the signature of the party is at this day so obvious, especially to a well informed lawyer, that surely he would not have hesitated to add such a proof of his recognition of the instrument. If a pen was to him a torpedo, as he declared in a letter to a friend, he would at least have risked one slight shock, and have filled in the date and put his name to the paper, with a note or memorandum that he wished it to operate as a bequest of his personal estate. It must be remembered that between the time when this will was prepared with so much care, and that when he last visited the depository of the evidences of his great wealth, which he had been hoarding up with such miserly care for so many years, circumstances had materially changed. Two of the executors named in the will had descended before him to the tomb, and the other two must probably soon follow; some of the legatees were dead, and he had survived James, the black man, one of the objects of his bounty, more than twenty years. The stock of the old United States Bank, the dividends of which were by the will appropriated to the support of the widow of his deceased brother, had been paid off, and the proceeds had gone into the general mass of his property at least fifteen years before his death. The child of his friend, on whom he had *once depended to perpetuate his family name, was now a bachelor of forty, with no prospect of a change in his situation. And what is still more important, it is in evidence from the mouth of Leake himself, that although this principal legatee named in his will lived in the same city, he had never visited the decedent, or been seen by him since he was a boy and led there by his father.

With all this change of circumstances, if Leake, in the last hour of his life, or at the time when he last visited the iron chest, had been asked, do you intend thus to dispose of your personal ^property by this will ? to leave your brother’s widow unprovided for, the faithful Casey without a shilling, and to let your immense real estate escheat to the people of the state? Is it possible to believe he would have answered in the affirmative? I cannot bring my mind to the conclusion that he ever intended to separate his personal property from the realty; or leave this instrument, unexecuted, as the legal evidence of his final intentions in respect to either.

Neither do I believe he intended to die intestate. With the counsel for the public administrator, I am inclined to think he was doubting as to what disposition should be made of the wealth which he could not carry with bim ; probably hesitating between the son of his old friend, who had disappointed him in the expectation of perpetuating his name, and the relative of his step-mother, avIlo, as he expressed it, was “ fiddling with his steam mill at the south.” In this state of doubt and uncertainty, the slowly wasting oil of life was at length exhausted; the lamp Avas extinguished; and the laws of his country have Avritten his testament.

This question being disposed of, the next that arises is which of the two appellants is entitled to letters of administration on the estate ? Without going into a detail of the evidence adduced by the appellant Norton to prove his relationship to the intestate, I am satisfied that the allegation by which he propounded his interest was wholly insufficient, and ought to have been rejected by the surrogate. Whenever a person comes forward to oppose probate of a will, he is bound to state his interest in the question with sufficient certainty to enable the court to decide whether, if the allegation *is sustained by proof, it will support his claim. He has no right to the administration, unless he has an interest in the estate as next of kin. Instead of showing how he is related to the intestate, agreeably to the ordinary form of allegations of interest, (Lawrence v. Maud, 1 Addams, 331,) he does not even allege that he believes he is the next of kin to the deceased. The next of kin of the decedent, whether alien or citizen, is entitled to his personal estate; therefore, being nearer of kin than any, other person residing in the United States does not entitle him to the administration. If the next of kin is not here, or is legally disqualified from administering, the public administrator is entitled.

The surrogate having decided that the allegation of interest was sufficient to entitle Norton to be heard, it was correct that the evidence in relation to his interest, and that which related to the validity of the paper propounded as a will, were permitted to proceed pari passu. (Waller and Smith v. Hesseltine and Burgh, 1 Phil. 170.) But in looking into the testimony as to the interest of Norton, there is no pretence that he is the next of kin to John Gr. Leake. He was his relation by affinity, but not by consanguinity. John Leake of the Hermitage was the great uncle of John L. Norton; and the father of John Gr. Leake married a step-daughter of John Leake of the Hermitage. They were thus distantly related by marriage; and this accounts for all the declarations of the testator that Norton was his relative.

There must be a decree entered on these appeals, reversing the sentence and decree of the surrogate pf New York in favor of the paper propounded as the last will of John G. Leake, and granting probate thereof. It must also be declared and decreed that the decedent died intestate; that John L. Norton, the appellant, is not his next of kin, is not interested in his personal estate, and is not entitled to administration; but that the public administrator of the city of New York is entitled to letters of administration on the estate. And this cause must be remitted back to the Surrogate’s Court, with directions to call in the letters of administration (ad collegendum) heretofore granted, and to grant administration to the public administrator.^[1]

[1] All doubt on the subject of subscribing and attesting wills are removed by statute. See R. S. (4th ed.) 246, sec. 33.

1. The statutes require that the testator must subscribe bis name at the end of the will. 2. Such subscription must be made in the presence of each of the attesting witnesses, or acknowledged by the testator to have been so made, to each of the witnesses. 3. The testator, at the time of mar king such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. 4. There must be at least two subscribing witnesses, each of whom shall sign his name at the end of the will, at the request of the testator. See also Brinckerhoof v. Remsen, 8 Paige, 491; Ghaffee v. Baptist Missionary Convention, 10 Paige, 86; Nelson v. McGriffert, 3 Barb. Ch. 158; Rutherford v. Rutherford, 1 Denio, 35; Tonnele v. Hall, 4 Comst. 140.