In re the Probate of the Last Will & Testament of Laudy

This case has a long and varied history. It had its origin in a proceeding before the surrogate of the county ofs27ew York to admit to probate an instrument purporting to be the last will and testament of Kate L. Laudy, deceased. ' The effort to prove the will was resisted, and resulted in a decree that said instrument was not attested and executed in the manner prescribed by law. Upon appeal to the General Term this decree was reversed and the Surrogate’s Court was directed to admit the will to probate. (In re Laudy, 78 Hun, 479 .) An appeal was taken from the judgment of the General Term to this court, where the judgment was affirmed on the opinion below ( 147 N. Y. 699 ); but subsequently a motion for a reargument was granted ( 147 N. Y. 721 ); and the judgment of the General Term was, after the second argument, so modified as to strike out the clause directing the surrogate to admit the will to probate and to insert in the place thereof the following: “ That a trial by jury be had * * * of the question as to whether the subscription of the instrument in question was made by the testatrix in the presence of each of the attesting witnesses, or whether she acknowledged such subscription to have been so made to each of the attesting witnesses, and as so modified the judgment ” was affirmed. ( 148 N. Y. 403 .) The question of fact was then tried before a jury, who found that the alleged testatrix acknowledged the subscription of

Upon examining the record formerly before us and comparing it with the record now before us, it appears that the evidence, while varying somewhat, is substantially the same. In both records there is evidence tending to show that Mrs. Laudy, the alleged testatrix, signed the will immediately beneath the usual attestation clause, which we have held to be a sufficient subscription. (Younger v. Duffie, 94 N. Y. 535 .) Subsequently she presented it, thus signed, to the attesting witnesses, Dr. Porter and Mrs. Edwards, at the same time, and requested them to sign it as witnesses, raising her hand

While the witnesses neither read nor heard read the attestation clause, and did not see Mrs. Laudy sign the instrument, still she had in fact signed it before she declared it to be her last will and testament, and requested them to sign as witnesses. If the will had been executed before experienced persons, familiar with the requirements of the statute, they doubtless would have been more careful to observe what Mrs. Laudy acknowledged as her signature, but all wills cannot be executed before witnesses of this character. Some must of necessity be executed in remote places, before such persons as are at hand, who are not only ignorant of the statute, but are ignorant generally and are careless observers, with poor memories. In a case where there is no claim of fraud, if the signature is there and is visible, and the witnesses hear the acknowledgment thereof and the declaration that the instrument is the last will and testament of the person so acknowledging, but they do not look closely to see the signature thus acknowledged, although it is before their eyes, the will should not be refused probate because those persons are ignorant, careless or indifferent, for the testator would have done his part and the statute would have been substantially complied

When this case was here before, upon substantially the same evidence,- we said : “ The testimony of Dr. Porter tends to show that the signature of the testatrix was upon the instrument at the time that it was presented to him for his • signature, and that she then stated that she had signed it. But the testimony of Mrs. Edwards is, in substance, to the effect that at the time the paper was presented to her for her signature, it was so folded that she saw only the signature of Dr. Porter, and speaking with reference to the conversation between the testatrix and the doctor, she recalls no expression on the part of Mrs. Laudy in which she stated that she had signed the instrument. A question of fact is thus presented as to whether she did or did not see the signature and as to whether the testatrix declared it to be hers. This question to some extent involves the credibility of Mrs. Edwards and the doctor’s testimony, as well as the inference to be drawn from the circumstances surrounding the execution of the instrument.”

Thé judgment then pronounced by us was that there was a question of fact as to the execution of the instrument as a will, and that it should be sent to a jury for determination. Whether, upon the evidence before the surrogate, a question of fact was presented, was a question of law, which was directly considered and decided on the former appeal. The same question of law now arises upon substantially the same evidence and our former decision still stands. When the court has jurisdiction of the cause and of the parties, its judgment is conclusive between the parties and their privies, not only in all other actions, but also in all other proceedings in the same action. (Roberts v. Cooper, 61 U. S. 467 -481; Wells Bes Adjudicata, 370; Ram on Legal Judgments, 292; Herman on Estoppel, 274.) The principle established in all jurisdictions is that so long as the facts remain the same, the

The question whether Mrs. Laudy acknowledged. her subscription of the instrument in question to have been made to each of the attesting witnesses should have been submitted to the jury for determination.

The order appealed from should, therefore, be reversed and a new trial ordered, and, under the circumstances, with the costs of the last trial, the last appeal to the Appellate Division and of this appeal, payable absolutely by the contestant to the appellants.

All concur (Gray, J., in result), except Bartlett, J., not sitting. Haight, J., dissents as to directions regarding costs.

Order reversed, etc.