In re the Application for the Probate of the Will of Laudy

The learned surrogate, at the close of the examination of the attesting witnesses to the instrument propounded by the executor as the last will and testament of Kate L. Laudy, held that certain of the substantial formalities which the statute requires to be observed in order to entitle an instrument to probate were omitted, and, as a necessary sequence of such determination, probate was denied. The statute requires that a last will and testament shall be executed and attested in the following manner: “(1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. (3) The testator, at the time of making such subscription or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. (4) There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.” 2 Rev. St. p. 63, §40; 3 Rev. St. (7th El.) p. 2285.

That the will was duly published and properly attested was not questioned, and there remains for consideration whether the other two requisites of a valid execution were complied with: (1) Did the testatrix subscribe the instrument at the end of the will? (2) Did she make such subscription in the presence of each of the attesting witnesses, or make due acknowledgment thereof to each of them ? The will appears to have been drafted some little time prior to the date of its attempted execution, which did not take place under the direction of a person familiar with the execution of such instruments. It is not surprising, therefore, that the full importance of the attestation clause, which had properly been made a part of the instrument by the scrivener, was not appreciated, and that the testatrix, instead of signing the instrument before the attestation clause, and opposite the seal, signed it next after such clause. So much of the instrument as is necessary to. present the manner in which it was executed reads as follows ‘ “ In witness whereof I have hereunto set my hand and affixed my seal the -day of June in the year of our Lord one thousand eight hundred and ninety. [l. s.]

“ The foregoing instrument was, at the date thereof, signed, sealed, published, and declared by said testatrix in our presence as and for her last will and testament, and thereupon we, at her request, and in her presence, and in the presence of each other, subscribe our names as witnesses hereto.

“Kate L. Laudt.

“William H. Porter, M. D.

“Cornelia K Edwards."

We have then to inquire whether the evidence requires a finding that the testatrix properly acknowledged the execution of the will. In doing this we shall have in mind that, bjr an express provision of the statute, this court has the same power to decide the questions of fact which the surrogate liad. Code Civ. Proc. § 2586. We are not, therefore, hampered by rules which ordinarily obtain in reviewing the findings of fact of a trial court. IE the conclusion at which we shall arrive, with the aid of a more careful argument than the surrogate was favored with, shall differ from his determination, we have but to give expression to it by finding the fact to be as we think the evidence requires. The authorities cited by the appellants, holding that wills should be admitted to probate even where the attesting witnesses are unable to recall any of the events attending the execution of the will, because of the recitals in the attestation clause, have no application here. It affirmatively and undisputedly appears that the attesting witnesses to Mrs Laudy’s will did not read, or hear read, the attestation clause. Neither docs § 2620 of the Code of Civil Procedure aid us, except in so far, as it indicates thelegislativepolicy to be not to permit a testator’s intended disposition of his property to be thwarted by the absence, incompetency, dishonesty, or death of the subscribing witnesses, when other proof which it points out shall be attainable. That section provides : “ If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or if such a subscribing witness is absent from the state; or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances, as would be sufficient to prove the bill upon the trial of an action.1’

No attempt was made beyond the examination of the subscribing witnesses, to make such proof as the section quoted suggests. The subscribing witnesses were Dr. Porter, the attending physician, an 1 Mrs. Edwards, the nurse then in charge of testatrix. Dr. Porter testified as follows: “I am a physician, forty years of age, and r 'si lo at 1674 Broadway. I knew Mrs. Kate L. Laudy in her lifetime. The signature of William II. Porter, M. D., on the paper now shown me, marked witli the file mark of this court, and filed for probate on September 12, 1893, is my signature. The circumstances under which that signature was made are as follows: It was while I was attending Mrs. Laudy, and she asked me one day to sign the paper, and I rather objected to do it, as I didn’t know what I was going to sign ray name to; and, as I remember it, she simplv unfolded it, and showed me it was her will, and remarked that I had ought not be afraid to sign it after she had signed it: and, as I remember it, her signature was there, or there was a sig

It is readily apparent, from the testimony thus quoted, that, had the other witness fully corroborated Dr. Porter, there would have been no room for doubting even that the statutory requirements had been fully met. But some portion of Mrs. Edwards’ testimony ■seems calculated to give the impression that, so far as she had any recollection, it was that Mrs. Laudy did not show her the signature. She said: “ When I signed my name, the paper was folded, -as near as I can recollect, so that I.did not see anything but just so much of the paper where Dr. Porter signed his name, and where I signed it, immediately under where the paper terminated,—the writing of the paper; and so I saw no contents of the paper further than the lines where Dr. Porter and I wrote our names. Now, I see immediately preceding the name of Dr. Porter the name of ‘Kate L. Laudy.’ Q. Was that signature’visible to you at the time you signed your name to the paper? A. Not that I recollect. I could not tell you. That is a question that I could not •answer. I didn't notice it.”

She does not say that she did not see the signature, but her testimony, considered in its entirety, amounts to an assertion that she has no present recollection of iseeing the signature,—a situation in which subscribing witnesses to wills often finds themselves. But the evidence, considered as a whole, satisfies us that, notwithstanding her present recollection, she did see the signature before signing her name as a witness. At Mrs. Laudy’s request she took the •will from the secretary, and brought it, together with the ink and

When, in response to the inquiry whether she had heard Dr. Potter’s description of what took place, she said “ it was something like that,” she portrayed her mental condition, and made it plain that her testimony should not be regarded as accurately describing anything that took place. It forces the conviction that this woman had no mental grasp whatever of the events about which she was testifying. It seemed to her that “ it was something like that ” testified to by Dr. Porter. She did not attempt to challenge anything stated by him, and probably could not; but, when she undertook to repeat what took place, her feeble memory caused her to fall far short of the real facts, and this failure to recall and repeat the occurrence as described by Dr. Porter has been treated as a denial of them. Again, it is undisputed that, at the time Dr. Porter signed, the paper was sufficiently unfolded so that he could see testatrix’s signature. “ Her signature was there, or there was a signature above where I signed, but I didn’t stop to look into the matter very closely one way or the other. I just had a glance at it, and I signed my name to it.” Then Mrs. Edwards takes up the story of that occasion. She says: “He (Dr. Porter) signed his name. She then turned to me and she says, 1 Susan, will you sign now ? ’ and so then I signed my name underneath Dr. Porter’s name.” How, there is no evidence that the testatrix or any one else altered the position of the paper between the time when Dr-Porter saw the testatrix’s signature, as he signed his name, and when, immediately after, Mrs. Edwards signed hers. The presumption is that its position remained the same; and that is also the inference from the evidence. If so, the testatrix’s signature was as plainly visible to Mrs. Edwards when she signed it, if she had looked at it, as it had been to Dr. Porter when he signed it, the moment before. We think the testimony of the subscribing witnesses, considered in connection with the circumstances attending the execution of the will, requires a finding that the testatrix complied with the demands of the statute that, in the event of

All concur.