In re the Probate of the Last Will & Testament of Brissell

The alleged will of the testatrix bears date December 21, 1878, having as the subscribing witnesses. L. P. Nostrand and Robert A. Adams. Her alleged codicil, having the same subscribing witnesses, bears date May 1, 1880. The only question is whether or not the evidence warranted the conclusion that the will and codicil were duly executed. The subscribing witness Robert A. Adams died about eight years prior .to the death of the testatrix. His signature ■ was proved. ■ The recollection of Lewis P. Nostrand, the other subscribing witness, was quite vague of the transaction of the execution of the will. He verifies his signature and adds that he knew and was quite intimate with the testatrix ; that she was of sound mind; that she requested him to sign as witness, but that he does not recollect the circumstances attending the execution .of the will, and does not recollect seeing her sign either the will or codicil; that he would not sign an instrument without knowing what he was signing, and having stated that he did not recollect that anything was read to him was asked : “ When you stated that nothing was read to you, you meant that you cannot remember whether anything was. read or not ?” and answered, “ Nothing further than the evidence that it was' her last will and I signed it on that request. That is all; the contents11 know nothing of.” The signature of the testatrix to both instruments was proved ; and by the evidence of the person named as executrix in the codicil it appears that .tile deceased told her about the will after it was made, and in a conversation about the codicil asked her to act as executrix. This constitutes substantially the evidence, outside of the • instruments themselves, relating to their execution. It seems that Robert A. Adams was a lawyer, *139and, as he was a subscribing witness to both instruments, it is reasonable to suppose that they were executed under his supervision. At the time of, the hearing the witness Nostrand was seventy-three years of age, and, sixteen and eighteen years had elapsed since the time of the execution of the will and codicil. Arid it is evident that his failure to state the circumstances relating to their execution was caused solely by his want of recollection. By reference to the attestation clauses it is seen that they respectively express all the elements requisite to be observed in the execution of a will, and, therefore, we think the conclusion of the surrogate, that the will was duly executed, was warranted.

On that subject the statute expresses the result of prior adjudications in the provision that if a subscribing witness whose testimony is required is dead, 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 will upon the trial of an action. (Code Civ. Proc. § 2620.)" No countervailing or suspicious circumstances whatever appear, nor is there any evidence that anything essential to the due execution of the will was omitted. The failure to make the transaction fully to appear by the evidence of the subscribing witnesses arises solely from the death of one of them and the want of recollection of the other. In such case much effect may be given to the attestation clause of the will, and especially so when, as in the present case, it .purports to make the subscribing witnesses say that all the essentials to the proper execution of the will were observed. This, with the fact that the will in question was executed by the testatrix and the attestation clause subscribed by the witnesses, fairly permitted the presumption that the provisions of the statute were complied with, although the surviving witness to the will was unable to recollect what took place at the time of the execution. (Matter of Will of Kellum, 52 N. Y. 517; Brown v. Clark, 77 id. 369; Matter, etc., of Pepoon, 91 id. 255 ; Matter, etc., of Cottrell, 95 id. 329; Matter, etc., of Hesdra, 119 id. 615.)

It is true, as suggested by the learned counsel for the contestants, that it does not appear' by the evidence of N ostrand that he saw *140Adams sign the attestation clause in the presence of the testatrix, nor does it appear by his evidence that he did not see him sign it in her presence. The following is his evidence in that respect: “ Q. Who was the other subscribing witness % A. I cannot remember. ■ Q. Do you recollect the fact that there was another subscribing witness ? A. I should think there was. Q. Can you recollect whether the other subscribing witness signed the paper at or about the same time ?' A. Do further recollection than that my signature is there and the request that 1 should sign her last will.” Dor does it apjoear by any oral evidence that Adams was acquainted with the testatrix; but that he did sign the-attestation clauses does appear ■by the proof of his signature, This, in view of the fact of his death and of the attestation clause, was, within the meaning of the statutory provisions before referred to, sufficient prima facie to effectually give to him the relation of subscribing witness, and to ■support the inference that he became such in a manner requisite to that relation for the purposes of the due execution of the will.

The cases cited by the counsel for the contestants do not seem to be applicable to the state of facts by which the presumption in the present casé is deemed supported. In Woolley v. Woolley (95 N. Y. 231) it was held that the attestation clause was not effectual to raise ■the presumption of the formal and due" execution of the will against the positive evidence to the contrary. In that case there did not seem to have been a failure in memory of the subscribing witnesses. Their evidence was to the effect that they did not see the deceased sign the will, and that she' did not acknowledge to them that she had signed it. In Lewis v. Lewis (11 N. Y. 220) the question presented was substantially the same, with a like result; and the samé may be said of Mitchell v. Mitchell (16 Hun, 97; 77 N. Y. 596), and Matter of Van Geison (47 Hun, 5).

• The conclusion follows that the decree of the Surrogate’s Court should be affirmed.

All concurred.

Decree of Surrogate’s Court affirmed, with costs against contestants, and proceedings remitted to that court.