50 N.J. Eq. 742 | New York Court of Chancery | 1893
'- The appellants seek a reversal of a decree made by the orphans court of the county of Camden on the 9th day of Feb
" Publication is essential to the validity of a will. To comply with the statute a testator must declaré the writing which he’ executes as his will “ to be his last will, in the presence of two, witnesses, present at the same time, who shall subscribe their: names thereto as witnesses.” Rev. p. 1247 § 22. He may do so, however, by act or sign as well as bywords,-if the act‘he-does or the sign he makes clearly indicates the character of the instrument. The statute'does not require that publication shall be made by words alone; any act or sign by -which the testator makes known to the subscribing witnesses that he exéeutes the; páper as, his will is enough. Chancellor Williamson, as surrogate-general, said, in Mundy v. Mundy, 2 McCart. 290, 293 : “The scrivener, in the presence of the testator^ sáys this is the-will of A. B. and he desires you to witness it—the testátor standing by—is a sufficient publication or declaration. The, form is immaterial. But the witnesses must know it is the will of the testator they are witnessing, and they must witness it at his request.” . The present surrogate-general gave a like exposition of this requirement of the statute in Elkinton v. Brick, 17 Stew. Eq. 154, 167, where he said a sufficient publication is made to comply with the statute “ when enough is said or done, in the presence and with the knowledge of the testator, to give the witnesses to understand distinctly that the testator desires them tó know that the paper is his will and that they are tq attest it.” And Mr. Justice Scudder, speaking for the court of errors and appeals, in Ludlow v. Ludlow, 9 Stew. Eq. 597, 601, said, in substance, that it was not necessary that a téstator
To illustrate by example: Suppose A gives his counsel instructions in the morning to draw his will and bring it to his house at five o’clock in the afternoon for execution, and then goes to his neighbor and says : “ I am going to execute my will at five o’clock this afternoon; my lawyer will be there at that time with the will; I want you and he to sign it as witnesses; ” the neighbor appears at A’s house at the time appointed; he finds the lawyer there, and A, soon after his neighbor’s appearance, produces a paper which he signs in the presence of both witnesses, and then, on rising from his chair, hands the paper to his neighbor, saying: “ Sit here while you sign,” and after his neighbor has signed the paper, A says to the lawyer: “Now you sign,” and the lawyer does so, and this embraces all that is said and done while the three are together, could there be a doubt, looking at the transaction in its entirety, that the witnesses clearly and distinctly understood, and were bound to understand, from A’s acts, considered in connection with what had previously occurred, that he executed that paper as his will ? All that the statute requires, in respect to publication, is that the testator shall make known to the subscribing witnesses, at the time of execution, that he executes the paper as his will. It is true that a will cannot be published before it is written, nor in the absence of the writing itself, but the previous knowledge of the subscribing witnesses, communicated by the testator himself, may impart to an act done or a sign made by him when he comes to execute his will a meaning as clear, certain and definite as the most lucid words would express, but which, to a person without
The will in question was executed on -the 31st day of May, 1892, while the testator was suffering from an illness of which he died on the 11th day of June following. Three persons, besides himself, were present at its execution, namely, his physician, his counsel and his son Frederick. He had instructed his counsel the evening before to draw his will and to bring it to him on the afternoon of the 31st for execution. Either on the morning of the 31st, or during the day before, he had told his physician that he intended to execute his will on the afternoon--of the 31st and that he wanted him to be present to witness its execution. The hour named was five o’clock or half-past five. On the afternoon of the 31st the testator’s counsel reached his house first. The will had been read before the physician came. The physician and the testator’s son entered the testator’s room together. All three agreed that the testator signed the will in the presence of his physician and counsel. It is undisputed that when he signed he sat in a rocking chair and wrote his name with the will lying on a board or book resting on his legs, and that while he was making his signature his physician and counsel sat directly in front of him. It also appears that when his signature was completed, he handed the will to his physician, who carried it to a table, standing near the testator, and there signed it, and that his counsel then at once signed it as the other subscribing witness. The evidence of the counsel and the son shows a full and perfect publication by the testator immediately after he signed. The fact that a sufficient publication was made, by words, to entitle the will to probate is established, I think, beyond doubt. Indeed, I may say I cannot conceive how any upright, competent and careful lawyer could, under the special circumstances of this case, have allowed so essential a part of
- But there is no proof of inattention or abstraction on the part of the doctor. If there had been, it would have been very difficult to believe it. The testator had been warned by the doctor that his days on earth were probably numbered, and he had also advised the testator that it would be prudent for him to arrange his earthly affairs. Under the influence of this admonition, the testator had requested the doctor to be present to attest the execution of his will, and the doctor - had promised that- he would;
“ I do not remember that he made any special remarks, except relative tQgetting me a pen and ink, or ‘where will the doctor sign it?’ I think he asked his son to light the lamp or start a light. It was just about dusk, as near as I remember, but beyond that I remember his anxiety about giving me-a .pen and where I would sign it.”
- He also, in a subsequent part of his testimony, in reply to a. question requiring him to state whether the testator said anything while executing his will, said:
“ I have no recollection of any remarks beyond common conversation—his-anxiety to get a light or have me placed in a position to sign, and I remember' a'remark of this kind, that he did not know whether his hand was steady-enough ’to sign himself.” .
- He .was then asked, whether when the will was handed to the,testator to sign, his counsel did not make some statements to, him, to which he replied: “Some remarks were made; I do-not remember them; they were very short, a very few words.”-Immediately following this answer, a question in this form was put: “ There was something said ?” to which the reply was “Yes, you spoke; there was some conversation.” But what was said in this conversation by either party was not disclosed. The nátnre of the transaction in which the parties were engaged-leaves no doubt, however, that it could have related to but one-subject, and that was the will. .
This summary of the doctor’s evidence, respecting what occurred at the decisive moment in this transaction, shows not only that .he was not unconscious of what was transpiring, but also, I
These instances of failure and confusion of recollection demonstrate very clearly, I think, that the doctor’s memory cannot be
The decree of the orphans court will be affirmed.