In re the Probate of the Alleged Will of Bernsee — 53 N.Y. St. Rep. 872

Majority

p. 872

In the Matter of the Probate of the alleged will of Adeline D. Bernsee, Deceased.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Will—Execution—Pboof of.

The attestation clause of the will in question was full and complete. One of the witnesses testified that it was signed in his presence by testatrix, who declared it to be her will, while the other witness testified that liewas asked by testatrix’ son to witness the will; that he asked testatrix if it was her will, to which she nodded assent; that he did not see her sign it, and that he did not remember seeing the signature. Held, that the proof of" execution was sufficient.

2. Same—Undue influence.

Undue influence will not be presumed and will not be established by irregularity, nor from the fact that the beneficiary stood in a confidential, relation to the testatrix.

Appeal from decree of the surrogate of Kings county, readmitting to probate a paper purporting to be the last will of' Adeline D. Bernsee, after a trial at circuit of certain issues of fact and from order denying motion for a flew trial.

William C. Dewitt, for app’lts; William R. Syme (George G. Reynolds and Daniel Daly, of counsel), for resp’ts.

The will was fully proven by the subscribing witnesses to it It was executed the 24th of October, 1890. One witness, Black, testifies that it was signed by the testatrix in his presence and in the presence of the witness Bellows, and that at the time she declared the instrument to be her last will and testament and requested the witnesses to attest it as such. The witness-Bellows makes no real issue with him. He signed his name as a witness. He was asked by Mr. Bernsee if he was willing to sign his mother’s will. He looked at his mother and said, “ Is that your will ? ” holding the paper in his hands. The testatrix nodded her assent. Bellows then requested the witness Black to sign first, which he did, and then Bellows signed. Bellows testifies that hedidn’t see the testatrix sign her name to the will. It makes no difference whether the name of testatrix was signed before she went to Bellows’ office. What transpired is sufficient to prove the-acknowledgment of her signature to the will, if not signed in the witnesses’ presence. This is on the assumption that a real issue is made as to the signature being in Bellows’ presence. The testimony shows the fact to be otherwise. The testatrix’ name is on the will. The attestation clause is full. Bellows does not remember to have seen it. He “took it for granted that everything was right.” He knew he was attesting as a witness that the paper “was her will ” and to give the paper effect and validity.” The testatrix was nervous, but of sound mind. She knew what the instrument was. “If she had not (testifies this witness) I would not have signed it.” She appeared to be under no restraint and was willing to execute the will. The will was so arranged that the testatrix’ name must have been seen when this witness signed it, and the purport of the testimony of the witness is'that he does not remember to have seen it. If that

p. 873

was a material fact his testimony would be wholly insufficient to overcome the facts and circumstances. The execution was made under legal direction. The attestation clause is perfect in form and the witnesses both signed it. The parties met to have a will executed. The witness Bellows knew that it was a will from her declaration and asked if she, testatrix, had left him anything by it. The will was, therefore, fully proven under Matter of Cottrell, 95 N. Y., 329 ; Lane v. Lane, 95 N. Y., 494 ; Matter of Hunt, 110 N. Y., 278 ; 18 St. Rep., 118 . Under these cases a finding against the execution of the will could not be upheld. The positive oath of one witness with the surrounding facts and circumstances would prevent, as against the failure of memory of the other witness. There is no proof whatever of undue influence in the legal sense of that term. It will not be presumed. It will not be established by irregularity, nor from the fact that the beneficiary stood in a confidential relation to the testatrix. Matter of Smith, 95 N. Y., 516 . There is proof that the will was voluntary and perhaps excusing the irregularity in this will.

A short time before the will was made the testatrix lived with one of her daughters, Mrs. Collin. A sou, Frederick Bernsee, also lived there. A quarrel arose between mother and daughter on account of the daughter directing this son to leave the house. The mother said she would go with him, and she did go. There was a dispute over a bed and bedding which her daughters claimed. Mrs. Donohue, another daughter, on this same occasion compelled the mother to open her trunk and made her take out therefrom some blankets, and compelled the mother to go before a police officer and then produced a bill of sale from her for a nominal consideration to Mrs. Collin. The testatrix had forgotten the bill of sale, but was greatly incensed at what she supposed to be insulting to her. All friendly relations ceased between mother and daughters, and this will was made as the mother wished to make it. The question as to the admissibility of one of the beneficiaries, Christopher Bernsee, who was present at the execution of the will, is, under the view I take of the case, immaterial. If improperly admitted no ground of reversal would be furnished. Code, § 2544; Matter of Eysaman, 113 N. Y., 62 ; 22 St. Rep., 136 ; Matter of Smith, 95 N. Y., 516 .

If the will was proven without his testimony the judgment would not be reversed.

The judgment and order denying new trial should be affirmed, with costs.

Dykman and Pratt, JJ., concur.