In re Schweigert's Will

The will in question bears date April 29, 1878. The testator died on the 28th day of December, 1895. Ho issue is presented by the objections filed or the evidence as to decedent’s testamentary capacity, nor is the question of undue influence involved, but it is asserted on the part of the contestants that the proponent

. The evidence shows that the decedent desired to make a will. He had a substantial reason for so doing. He employed the justice to draw the same. He went to the office of the justice on the appointed day, selected and called in each of the attesting witnesses, and told each of them that he wanted them to go to Multer’s office to sign his will. Multer testifies that he drew the will after consultation with the decedent, and in the manner directed by him. The attestation clause is as follows:

“The above instrument, consisting of one sheet, was at the date thereof sealed, published, and declared by the said Augustus Schweigert as and for his last will and testament, in presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. John Lints, Residing at Ashford, Catt. Co.

“H. D. Boss, Residing at Ashford, Catt. Co."

It will be seen that this attestation clause is full and complete in every particular, except that it fails to recite that decedent signed the will in the presence of the witnesses. The phrase used is “sealed, published, and declared by the said Augustus Schweigert.” One witness, who was familiar with the handwriting of the deceased, testified that the signature at- the end of the will was that of the decedent. In fact, there is no substantial controversy about that. One of the attesting witnesses, as above set forth,' states that, according to his best recollection, decedent signed the will in his presence, and in the presence of the other witness. The witness Multer was asked the following question: “After looking at the will, can you say that deceased signed it before the witnesses did?” To which the witness answered, “Yes.” I am of the opinion, after a careful review of the authorities bearing upon this question, that this evidence,.taken in connection with the surrounding circumstances, establishes the fact that decedent either signed the will in the presence of the witnesses, or acknowledged his signature to them.

In the case of Nickerson v. Buck, 12 Cush. 332 , Justice Dewey says:

“All that is necessary for him [the witness] to know from the testator is that the signature to the will is his, or written by his direction, and adopted by him. Bence, if the witness be requested by the testator to sign his name to the instrument as attesting witness, and the testator declares to the witness that the signature to the will is his, that is abundantly sufficient. But the adjudicated cases go further, and hold that the actual signature may be made known to the witnesses in other modes than an expressed declaration to the witnesses that the will is his. Any act or declaratibn carrying by implication an averment of such fact is equally effectual. Hence it has been repeatedly held that a declaration by a testator to the witnesses that the instrument is his will, or even a request by him to the witnesses to attest

his will, Or other varied forms of expression implying that the same had been signed hy the testator, are either of them quite sufficient.”

The same principle was also recognized and applied in Ela v. Edwards, 16 Gray, 91 .

In the case of Ellis v. Smith, 1 Ves. Jr. 10, the principal question in controversy was whether the testator’s declaration before the witnesses that the paper was his will was equivalent to signing it before them, and it was held that it was.

In Blake v. Knight, 3 Curt. Ecc. 549, three witnesses had signed the attestation clause. Two of them testified that testator did. not sign or acknowledge the signature in their presence, and the other could not say whether he did or not, but there were surrounding circumstances indicating a due execution of the will, and it was admitted to probate.

In Gaze v. Gaze, 3 Curt. Ecc. 451, deceased exhibited the will to the witnesses already signed and sealed, and either pointed out the places where they should sign, or said, “Put your names below mine.” They signed accordingly, and this was held a sufficient acknowledgment of his signature;

In the Case of Warden, 2 Curt. Ecc. 334, the will had been signed before the witnesses came into the room. The witnesses were sent for by her. The draftsman produced the will, and told the testatrix that the witnesses had come, to which she replied, “I am very glad of it. Thank God.” Then the witnesses signed their names, and the court held that the signature was sufficiently acknowledged.

In Re Ware, reported in a note ( 25 N. Y. 425 ), one of the attesting witnesses testified before the surrogate that she was not requested by the testatrix to sign the will as a witness, and that there was no publication of the instrument as her last will and testament; yet, in consideration of the circumstances attending the execution of the will, the court admitted it to probate. .

In Peck v. Cary, 27 N. Y. 9 , it was held that the signature of the testator, or his acknowledgment thereof in the presence of the witnesses, and his publication of the instrument as a will, were proved by the attestation clause and the attending circumstances, though after the expiration of two years none of the witnesses could testify that he saw the testator sign, or heard him acknowledge his signature, nor could testify that he himself read or heard read the attestation clause. See, also, Willis v. Mott, 36 N. Y. 486 ; Butler v. Benson, 1 Barb. 527 .

In the case of Theological Seminary v. Calhoun, 25 N. Y: 422, the publication of the will was established by the testimony of one of the attesting witnesses in direct opposition to the evidence of the other. *

The Code expressly provides that the proof of a will may be established when a subscribing witness has forgotten the occurrence of its execution, or testifies against it upon proof of the handwriting of the testator and the subscribing witness and of such other circumstances as would be sufficient to prove the will upon the

In view of these authorities, I am convinced that the will in question ought not to be denied probate in consequence of the uncertainty of recollection on the part of the attesting witnesses.

In regard to the remaining question, as to whether or not the decedent understood the contents of the will at the time of its execution, but little doubt could arise. The deceased was a German, who had lived in this country for many years, and who did not learn English or speak the English language readily; yet it is evident that he could make himself understood in ordinary business transactions, when dealing with those who did not understand the German language. For many years he transacted business at the bank, making his own deposits, and giving instructions regarding the same. He informed Mr. Multer as to what disposition he desired to malee of his property. He was a man of ordinary shrewdness and sagacity, and it would be contrary to reason to "hold that he signed the will in question without comprehending its contents.

The objections filed call for a construction of the will in some particulars. By the first item of the will, the testator devises to his widow 50 acres of land from the north end of his farm, that being the portion on which the buildings are located, during life, the same to be accepted by her in lieu of dower. He also bequeathed to her one-third of his personal property absolutely. The second item of his will is as follows: “I give and bequeath unto Louisa Kesler, Madaline Michael, Frank Kesler, and Leopold Kesler (children of my said wife by her first husband, Leopold Kesler) the sum of one hundred each,” etc. Contestants claim that this item of the will is void as a testamentary disposition of personal property, because of its uncertainty and indefiniteness. The difficulty arises from the omission of some word after the word “hundred.” Standing in its present form the bequest is meaningless. It is evident that the scrivener inadvertently omitted a word in transcribing the will. Two questions arise in consequence: First. Can the omitted word intended to be employed by testator be ascertained from the phraseology of the entire sentence? And, second, is the court authorized to supply such missing word in order to effectuate the intention of the testator? The expression, “I give and bequeath unto,” etc., “the sum of one hundred each,” indicates a design to make

The surrogate’s court has no authority to construe the third item of the will, as that relates exclusively to real estate.

Ordered accordingly.