In re Proving the Will of Nelson — 43 N.Y. St. Rep. 30

Majority

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In the Matter of Proving the Will of Homer A. Nelson, Deceased.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Will—Execution.

Testator and the witness who drew the will were lawyers of ability and experienced in the execution of wills, and the attestation clause was full and explicit, except that it did not state that the witnesses signed at the request of testator. The surviving witness testified that he did not sign at the request of testator, but at the request of the other witness in the presence of testator. Held, that from the fact that testator and the draftsman were experienced in such matters it would be presumed that all formalities were complied with.

Appeal from decree of surrogate, admitting will to probate. The witness who drew the will died before the testator, and the

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surviving witness testified that he did not sign at the request o£ testator, but at the request of the other witness, made in the presence of the testator, who was very sick at the time. This-witness was a coachman in the employ of testator.

J3. W. Fullerton and M. H. Hirschberg, for app’lts; Franlc B. Lown. (John Hackett and H. M. Taylor, of counsel), for resp’ts.

The testator was a prominent practicing lawyer in the county of Dutchess for many years, and no man in that county knew more fully and accurately the requisites of a valid will than did the deceased, and the same might also, perhaps, be truthfully said of the subscribing witness, 0. D. M. Baker.

The will, was made some thirteen years prior to the testator’s death, and during the latter part of that time was in his possession.

There is no testimony worthy of notice that at the time the will was signed he was not fully competent to make a will, or that it was the result of any restraint or undue influence.

The evidence is abundant and conclusive to any fair mind that all the formalities to make a valid will were duly complied with.

The fact that the testator was a lawyer of great ability and of much experience in the matter of wills and familiar with all the requisite formalities for their valid execution, and the further fact that the subscribing witness, who in part superintended its execution, was also a person of like ability and experience, afford a strong presumption that all the acts necessary to make a valid will were performed.

In Re Cottrell, 95 N. Y., 329 , the attestation clause is full and specific as to every requirement, except it does not state that the witness signed at the request of the testator. This defect, if such it may be called, was fully supplied by sufficient proof that it was-done at testator’s request.

The attestation clause is full and explicit, except as just stated, and it is subscribed by the two witnesses, and is to be regarded in connection with the circumstances surrounding the execution of the will as of more weight than the loose or perverse recollection of" one of the subscribing witnesses.'

Wills concededly made by persons in full possession of all their faculties, attested in due form, ought not to be set aside on the flimsy pretext that a witness who has heard read the attestation clause does not remember after many years whether a particular formality was complied with.

Aside from the uncertainty that would arise about every will, it would open the door to and afford a strong temptation to perjury. Rugg v. Rugg, 83 N. Y., 594 ; Code, § 2620; Matter of Hesdra, 119 N. Y., 615 ; 28 St. Rep., 810 .

It is not necessary to comment on the testimony of the witness Keller, except to say that we think the surrogate was justified in not crediting some of his testimony, but the testimony of that witness supplies any defect in the attestation clause.

It is not necessary to discuss the cases quoted by the contest

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ants. Each, contest about a will must be determined upon the particular facts and circumstances that surround it

There is no principle quoted by the contestants that is controlling in the present case to prevent the probate of the will.

Decree affirmed, with costs.

Baward, P. J., and Dtkmah, J., concur.