Smith v. Smith — 2 Lans. 266

Majority

p. 266

John M. Smith and others, Appellants, v. Mott D. Smith and others, Respondents.

(General Term, Second District,

February, 1870.)

Headnote

A will was executed in the presence of the draftsman, a person accustomed to drawing such instruments, and of two witnesses, in the following man ner: The testatrix signed the instrument in the presence of the witnesses, and in response to a question put by the draftsman, acknowledged it to be her last will; the draftsman then said to one of the witnesses, “ now Mr. W.,” and, handing him the pen, the latter signed the attestation clause, which was full, and handed the pen.to the other witness who also signed in like manner. The will was in possession of the testatrix at the timo of her death. — Held, that it was duly published and executed.

Appeal from a decree of the surrogate of Queens county, refusing probate of the will of Mary Smith, late of Flushing, in that county, deceased. The facts are stated in the opinion of the court.

J. J. Armstrong & Ralph E. Prime, for the appellants.

Benjamin W. Downing, for the respondents.

Present — Joseph F. Baeuabd, Gilbert, Tafpeh and pFvATT, JT.

p. 267

By the Court

I think the evidence fully proves that the attesting witnesses, at testatrix’s request, subscribed their names to the will in question. The will was drawn by Samuel Willetts, a justice of the peace who was accustomed to draw wills. The testatrix, the two witnesses, and Willetts were present at its execution. The testatrix in the presence of the witnesses and of Willetts, signed her name to the will. She then, in reply to a question put to her by Willetts, acknowledged the instrument to be her last will. This acknowledgment was in the presence of the witnesses. The draftsman of the will then said to one of the witnesses, “ now Mr. White,” and handed him the pen in the presence of all. White signed as a witness and handed the pen to the other witness; he signed also in the presence of all. The attestation clause is full. The will was found in the possession of testatrix at the time of her death. All the parties present knew -what the paper was. It was duly published. The witnesses signed knowing what paper they were -attesting. Mrs. Smith was present when they signed, and made no objection. Willetts, whom she had employed to draw the will, requested the witnesses to sign; and the request being made in her presence it is, in law, her request.

The decree of the surrogate should be reversed, and the question tried by a jury or a circuit court to be held in the county of Queens.

Decree reversed.