Rugg v. . Rugg

83 N.Y. 592 | NY | 1881

We think that the evidence was sufficient to establish that the will was executed in accordance with the provisions of the Revised Statutes and the decisions of this court. The evidence of the subscribing witnesses upon the cross-examination, which, it is claimed, tended to show that they did not sign the will after it was signed by the testator, is insufficient to establish that it was not properly executed. Hooker, one of them, after stating that the testator signed after he did, appears to have had doubt on the subject, and testifies that he may be mistaken. The other witness, Smallwood, who testifies that he does not remember that Rugg signed last, states, in the course of his examination, that he (the witness) was the last one who signed. It will be seen that the testimony is by no means satisfactory that Rugg signed last, and the most which can be claimed from the evidence of the subscribing witnesses is that they were not positive — that they did not remember exactly how the fact was. To supply this want of memory Jenks, the executor, who had considerable experience in such matters, testifies distinctly as to all which took place, the order in which the several acts were done, and that the testator signed before the subscribing witnesses. The preponderance of proof was in favor of the due execution of the will, and, as the evidence stood, the surrogate could not come to any other conclusion than that the will was properly executed. Where there is a failure of recollection by the subscribing witnesses, the probate of the will cannot be defeated if the attestation clause and the surrounding circumstances satisfactorily establish its execution. (Matter of Kellum,52 N.Y. 517.) In fact wills may be established even in opposition to the evidence of the subscribing witnesses. (Trustees of AuburnTheo. Sem. v. Calhoun, 25 N.Y. 425.)

There was no objection to the questions put to the subscribing witnesses in regard to their being mistaken; and within well-settled rules they were properly allowed.

Jenks was also a competent witness. (See Children's AidSociety v. Loveridge, 70 N.Y. 387.) There is no distinction between this case and the one cited which authorizes a disregard of the latter authority.

No other question is presented which requires examination. Nor is there any thing in the evidence which authorizes a reversal of the decree of the surrogate. The opinion of the General Term fully covers all the questions presented, and the judgment should be affirmed.

All concur.

Judgment affirmed.