2 Bradf. 427 | N.Y. Sur. Ct. | 1853
The probate of the will of the decedent is opposed, on the ground of insufficient proof of formal execution, pursuant to the provisions of the statute.
The decedent signed the will in the presence of the subscribing witnesses, and they, subscribed in his presence and at his request. Neither of the witnesses proves any testamentary declaration.
The decedent was in bed, sick. He sent for the witnesses. They came. He took the instrument from under his pillow, and said he had “ an instrument in writing ” he wanted them to witness. He took the paper from an
Mr. Drake, one of the witnesses, states that the decedent called the document “ an instrument in writing,”-—-that no part of it was read aloud, and the decedent did not request him to read any part of it,—that he did not read any part of it; but, while he was signing, he took a glance at the attestation clause, and, from the heading of the document, “ Know all men by these presents,” and from what he read below, he judged it to be a will. In respect to the attestation clause, he says, “ I read the first line straight through, and catched the rest as I was sighing—backwards and forwards. I read the heading of the will,—that is, the first line. I read the words, ‘ attesting witnesses,’ at the end of the attestation clause. Those are all the words I read in the attestation clause.” This witness states, that if the decedent had been in perfect health, and had requested him to sign the paper, he would have known it to be his will. When interrogated whether the decedent declared it to be his last will and testament, he answered-, “ I did not hear him make use of those words. Did he say it was his will ? He said it was an instrument of writing. Did he say .of what kind or purport ? I don’t recollect that he did. Oan you say that he did not say it was his will ? Ho. I cannot say that. Do you mean, then, only to say that you do not recollect he declared it to be his will ? I was in only for a moment. May he have declared it to be his will, and you have forgotten it? I think, under the circumstances, he might, for I was somewhat affected.”
Mr. Perry testifies that he went into the decedent’s room before the arrival of the other witness. The decedent said “he had sent in for Mr. Drake, that he wished me and Mr. Drake to witness an instrument in writing that he had. He did not say what it was, nor did I ask him.”
The instrument offered for proof was executed on the 7th of July last, and the witnesses were examined on the