5 Redf. 624 | N.Y. Sur. Ct. | 1878
The contestant objects to the probate of the will, on the ground, among others, that undue influence was used by Sarah J. Hawxhurst, which resulted in deceased making a will, the provisions of which were acceptable to Mrs. Hawxhurst, but were contrary to the natural inclination and desire of deceased.
The contestant urges that the will cannot be admitted t.o probate, for the reason that there is not sufficient proof of the execution of the will. One of the subscribing witnesses, Mr. Can tine, testified that he did not see Mrs. Cudney sign her name ; that “ she did not sign it in my presence and that “I do not recollect that the attestation clause was read ovér.” He does testify that she declared the paper signed by him to be her last will and testament, and that “ she asked me to sign the same as a witness.” The evidence of the other subscribing witness is to the effect that all of the formalities were complied with. It has been repeatedly held that, where one of the subscribing witnesses swears that all the formalities required by statute have been complied with, even though the other attesting witness may not be able to recollect the fact, the will should be admitted to pro
Conceding the evidence of Cantine to be that the will was not signed in his presence, and that the attestation clause was not read over, I am of the opinion that the execution of the will has been duly proved, for the testatrix in the presence of both witnesses, declared the paper signed to be her last will and testament, and she requested both McBlhone- and Cantine to sign the same as witnesses, which they did in her presence, and in the presence of each other. In Baskin v. Baskin (36 N. T., 416), the court says that it is sufficient, if the subscription be either made or acknowledged in the presence of those who attest it, and that a declaration that the paper to which he has affixed his signature, is his last will and testament, accompanied with a request that the witnesses attest it, is a sufficient acknowledgment of a signature thus affixed. The objection that the attestation clause
It is, therefore, well settled by authority that it is not necessary that the signature of the testator should be affixed in the presence of attesting witnesses, or the attestation clause read. Probate of a will is to be granted or denied, in view of all' the facts attending its execution ; and the production of a paper to which the testator has affixed his signature, and a statement to the witnesses that such paper is his last will and testament, accompanied with a request that the witnesses attest the same, are a sufficient acknowledgment to render the will valid. The evidence in this case, however, is much stronger, one of the witnesses testifying that all of the usual formalities were enacted, and that the testatrix signed the will in the presence of both witnesses.
I am satisfied, therefore, that the execution of the will has been duly proved, and, as there is no evidence affirmatively establishing fraud, influence, restraint or imposition, it should be admitted to probate.
Decreed accordingly.