Lane v. Lane

A paper purporting to be the last will and testament of Frederick F. Lane was admitted to probate by the surrogate of Schuyler county, but his decision was reversed by the Supreme Court, and certain issues relating to its execution and the testamentary capacity of the testator were sent to a jury for trial. They have been so answered as to establish that the instrument in question was first read to or by the testator; that he understood it was his last will and testament and so subscribed the same at the end thereof in the presence of two persons, viz.: S. B. H. Nichols and L. C. Wakelee, who at his request subscribed their names thereto as attesting witnesses; — that the testator at the time was fully competent to make a will, and not disabled either in respect of his person, mind, or condition, being under no restraint or undue influence, and of sound and disposing mind and memory; — that the making and executing of this instrument was his free and voluntary act; that at the time he “ fully comprehended the effect of his act in so executing the same, and that of the subscribing witnesses thereto.” But to the question whether “ at the time of subscribing the paper he declared in the presence

The proponent upon a case and exceptions moved the Supreme Court at General Term for a new trial, and it being-denied, brings this appeal. It is now stated in the printed points of the learned counsel for the respondent, that after verdict the proponent moved the judge who presided at the trial for judgment non ohstcmte verdicto, or a new trial, and was denied. He claims, therefore, that the proponent should have taken an appeal from that decision to the General Term instead of going there with an original motion. No basis for this contention appears in the record before us. Therefore, it is not necessary to pass upon it. We are of opinion, moreover, that the appellant is entitled to a new trial upon the ground that the verdict of the jury in answer to the question referred to, was not warranted by the evidence. They found that the subscription by the testator was at the proper place (2 R. S. 63, § 40, sub. 1), and that he subscribed the will in the presence of each of the attesting witnesses; that each of these witnesses signed his name as a witness to the execution of the will at the request of the testator (sub. 4, id.), thus showing exact and formal compliance with all statutory requirements save one, viz.: that “ the testator at the time of making such subscription * * * shall declare the instrument so subscribed to be his last will and testament ” (sub. 3, id.). But upon the other conclusions of the jury, and the uncontradicted evidence in the record, we think this question also should have been fully answered in the affirmative. It is quite probable that the jury were led to their discriminating answer by a too close and exclusive adherence to the testimony of one witness, who said, “ when Wakelee came in he did not ask Mr. Lane if that was his last will and testament, nor did Mr. Lane say 1 that is my last will and testament,’ ” and to that of Wakelee himself, who said, “I did not ask Mr. Lane if that was his last will and testament, nor did Mr. Lane say to me, £yes, this is my last will and testament.’ ” It was but negative

Although publication is as essential to the validity of a will as its execution or other prescribed formality, it has never been supposed that a particular, or even any form of words was necessary to effect it, and in Remsen v. Brinckerhoff (in the late Court of Errors, 26 Wend. 325 ), one of the first cases arising after the enactment of the statute, it was said that by the provision in question “the legislature only meant there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will, and that any communication of this idea or to this effect will meet the object of the statute, that it is enough if in some way or mode the testator indicates that the instrument the witnesses are requested to subscribe as such is intended or understood by him to be his will.” In the same case the word “ declare ” is said to signify “ to make known, to assert to others, to show forth,” and this in any manner, either “ by words or by acts, in writing or by signs; ” in fine “ that to declare to a witness that the instrument described was the testator’s will, must mean to make it at the time distinctly known to him by some assertion, or by clear assent in words or signs.” The case itself is an example and an explanation of this construction. Probate was there held impossible, because, as the court say, “ not one word, or sign, or even act, passed within the hearing or presence of the witnesses at the time of the execution, tending to this effect.” It was therefore a case where a testator, through imposition, might have been induced to execute a will under pretense that it was a paper of a different nature. To prevent this was the object of the statutory requirement.

The principle upon which that decision rests, and the'reasoning by which it was supported, has been invariably applied in

As to the condition now under consideration, it is well settled that the necessary publication may be discovered by circumstances as well as words (Lewis v. Lewis, 11 N. Y. 220 ), and inferred from the conduct and acts of the testator and that of the attesting witnesses in his presence (Thompson v. Seastedt, and other cases, supra), as well as established by their direct and positive evidence. Even a person both deaf and dumb may by writing or signs make his will and declare it. The testator in this case was in full possession of all his senses. He could both see. and hear, and was not dumb. Partial paralysis of the vocal organs prevented him from uttering words, but he made sounds intelligible to those familiar with him, and signs which, to some extent, all could interpret. There was no difficulty with his understanding. The uncontradicted evidence shows that he set about making his will in a serious and determined manner. He went with his wife and son from his own to the house of the scrivener Nichols, and there, Nichols says, “ his wife, speaking in his presence, informed me that Mr. Lane wanted me to write his will, and I did so in his presence.” As the scrivener wrote each section he read it aloud to the testator, who nodded approval each time. While

From the situation of the parties, and the circumstances surrounding them, it seems to us that the jury were fully justified in saying that the testator made the required declaration to Nichols, and we think their verdict should have been the same as to Wakelee. They were present and together during both events of executing and attesting the will, and the conduct of the testator upon that occasion amounted to a declaration that the instrument was his will and testament. Such also is the meaning of the attestation clause, and this, upon such a question, may be referred to Brown v. Clark ( 77 N. Y. 369 ); Chaffee v. Baptist Missionary Convention (10 Paige, 85). It is not in the usual form, but recites that “ as witnesses to this last will and testament of Frederick F. Lane, we have signed our names * * * by his request, in his presence, and in the presence of each other.” The request covers the act of the parties, and embodies a description of the instrument when declaring the character in which the witnesses attest it. It is as if ■ the testator had said, I request you to sign as witnesses to my will. Two facts are involved, a statement of the paper and a

We find no room for doubt or mistake. The testator knew, and the witnesses understood from his acts and conduct, as he intended they should, that the instrument then executed was his will. The statute upon this point exacts nothing more, and it is not denied by the respondent that on every other there was strict compliance with its terms. We find then that the testator subscribed the will in the presence of the witnesses, made known to them its nature, and requested their attestation. On his part nothing more was required, and on their part was. attestation of the will at his request. Thus every safeguard prescribed by statute against improvidence and fraud was substantially observed.

The appellant presents another ground of appeal. Hpon the trial the testimony of Mrs. Lane was offered by the proponent, and excluded. She was the executrix of the will and a legatee under it. The other parties to the controversy are the heirs at law of the testator. As to any personal transaction or communication with the testator, she was of course incompetent to testify, under section 829 of the Code. She, however, gave

The order appealed from should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur, except Sapallo, J., not voting.

Ordered accordingly.