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In re Raymond's Will

151 N.Y.S. 648 Court N.Y. App. Div. Decision date 1915-02-05 Docket No. 6788 English

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In re RAYMOND’S WILL.
(No. 6788.)
(Supreme Court, Appellate Division, First Department.
February 5, 1915.)

Headnote

Wills (§ 324[1] ) — Execution—Publication—-Acknowledgment of Signature — Questions for Jury.
Whether at the execution of the will of testatrix there was sufficient publication, and whether she acknowledged her signature to one of the witnesses, who was not present when she signed, and who did not see her signature, held for the jury.
[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*]
Appeal from Surrogate’s Court, New York County.
In the matter of the application for probate of the last will and testament of Emma Marcy Raymond, deceased. From a surrogate’s decree refusing to admit the will to probate ( 86 Misc. Rep. 359 , 149 N. Y. Supp. 216 ), proponents and certain legatees appeal.
Reversed and remanded, for trial of issues to jury.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ.
Henry W. Jessup, of New York City, for appellants.
Abraham Gruber, of New York City, for respondents.

Emma M. Raymond died on the 7th of November, 1913, leaving what purported to be her last will and testament, bearing date the 8th of January, 1912. At the time of her death she was about 80 years of age, and the will was drawn by herself. The attesting witnesses were Gertrude Green and James Gumming. The will was offered for probate, which was refused on the ground, as appears from the opinion of the surrogate, that:

“There was no publication, no legal request made to the subscribing witnesses to act as such, and no acknowledgment to the witness Gumming, who was not present when the testatrix signed, and who did not see her signature.”

The proponents and two legatees separately appeal.

After a careful consideration of all the evidence bearing upon the execution and publication, and the circumstances in connection there

p. 649
with, we are not satisfied with the conclusion reached by the surrogate. When the deceased wrote her will, she either knew what formalities were required in its proper execution, or else was apprised of that fact in copying it from a form. It is evident she took much care in preparing the will, and it is inconceivable, under such circumstances, that she would have requested the witnesses to come to her apartment for the purpose of signing as such, and, when they signed, not have said a single word to them about it, or for what they were there. Taking into consideration the surrounding circumstances, the contradictions of the subscribing witnesses and the witness Searing, we think the proper disposition to make of the appeal is to direct a trial of the issues involved before a jury.

The decree appealed from, therefore, is reversed, and the issues raised as to whether the instrument were duly executed as a last will and testament directed to be tried in the Supreme Court before a jury, with costs, payable out of the estate, to the appellants.

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