McKinley v. Lamb

(dissenting.) In this ease it is claimed by the respondent that the will in question was not duly executed, pursuant to the statutory requirement. The particulars in which it is claimed that there is a noncompliance, are three:

1st. That the deceased did not declare the paper to be his last will and testament.

2d: That the deceased did not request the witnesses to sign their names as witnesses.

3d. That there is no proof that the paper was signed by the deceased before being signed by the attesting witnesses.

The third objection does not seem to have been taken, or thought of, during the progress of the probate before the surrogate. Under the circumstances, the evidence warrants the conclusion that the deceased signed first. McMurray, who is the first attesting witness, swears that he and Crawford held the deceased up in the bed. He then testifies, “ he signed the will, himself, and I signed the will.

Crawford testifies: “He said he would sit up and sign it; he wanted to do it in bed, and they helped him up, and he done it.” Crawford is the second attesting witness.

I think this, together with the presumption arising from the attestation clause, is sufficient to prove that the deceased signed first, in the absence of any contest on that point in the court below.

The evidence shows that the will was read aloud by the witness Crawford, in the testator’s presence and at his request, on the occasion of its execution. It was also read by the witness McMurray, on the same occasion, at the testator’s request, and in his presence, partly aloud and partly to himself.

“ The purpose of requiring a publication being to make sure that the testator is aware that he is making a will, and that he be not imposed on, and procured to sign a will when he supposes it to be some other instrument,” *298(25 N. Y. Rep. 425,) the reading of this paper by these two witnesses, at the request of the testator, he designating it as his will, is certainly as satisfactory a publication as if he had used the set formula, “ I declare and' publish this as and for my last will and testament.” Indeed to my mind it is more satisfactory.

The witness Crawford testifies: “I was sent for to come as a witness. I had promised him (the deceased) before, that I would be a witness. When I came into the room he said he had sent for me to witness his will.” This is clearly a sufficient request to Crawford to act as a witness to the will.

McMurray testifies that he don’t remember whether the deceased asked him to sign the will as a witness; but he testifies that he on that occasion read the attestation clause, and knew the contents of it, and that clause states that they signed “at the testator’s request.” This is some evidence that there was such request; and this is strengthened by the fact that after having been called there for a special purpose, the deceased requested him to read the will, showing him that he knew the object for which the witness had come, assented to it, and desired, as he was to be a witness, that he should know what it was that he was about to witness.

, As the statute requires but two witnesses to a will, it is immaterial whether the one in question was published to Combs, the third witness, or whether the deceased requested him to sign it as witness, or not.

If, then, there was no testimony contradicting that of Crawford and McMurray, the decision below would have to be reversed. Js there such evidence ?

John Combs, who was present during the whole time that McMurray was, testifies:

“Did the testator say anything? Did you hear Mr. McKinley, the testator, 'Say anything ?

KOj sir.

*299Did you hear the will read in his presence ?

I only heard a few words read.

Who read the will ?

Mr. McMurray read a few words.

Was it in the testator’s presence ?

Yes.”

This witness was one of those who had been requested to come and act as witnesses.

James D. McKinley, the testator’s grand-nephew, testifies that he was present in the room from the time the witnesses came in until they went out.

“ Just tell me what occurred that night; after the witnesses came there, after Mr. Crawford, Mr. McMurray and Mr. Combs came there, just me tell what occurred?

Nothing occurred. There was nothing much occurred when they came there, but to sign the will. He did not speak anything.

Was anything said by McKinley, the testator?

No, sir.

The old man did not say anything about the will ?

No, sir.”

Cross-examination.

“You mean to say that you did not hear him say anything ?

No, sir; if there was anything said I could have heard it.

Did you see him sign the will ?

Yes, sir, I did.

Did you hear McMurray read a portion of the will ?

No, sir.”'

The room was not a large one; the deceased was in bed; and the only persons in the room were the deceased, the three persons who had been called in as witnesses, James D. McKinley, and the executor, John S. McKinley.

Thus there is a conflict of evidence as to whether the requisitions of the statute were complied with. Considering that the witness Crawford could not, on his first *300examination, recollect that the deceased requested him to sign as a witness, but only recollected that circumstance after the adjournment of the next day; that there is no direct evidence of a request to McMurray to sign as a witness, said request only being implied from- the circumstances; that the deceased was a man of 88, and in extremis when "the paper was executed; that the paper was drawn by the party chiefly interested under it; and that the surrogate had, the witnesses before him, and was thus able to note their appearance, demeanor and manner of testifying, on which, to a very great extent, the degree of credibility to be attached to them depends, the decision of the surrogate, on this conflict of evidence, should not be disturbed.

■ His decree should therefore be affirmed, with costs.

Decree reversed, and a feigned issue ordered.

Ingraham, Qeo. G. Barnard and Brady, Justices,]

The conflict of evidence in this case is not such as to warrant the decree of the surrogate. The testimony of James D. McKinley, a relative of the testator, interested in the estate, and who is the only witness in favor of the contestants in reference to the execution and publication of the will, is not afñrmative in its character, and is not, therefore, entitled to the consideration which it would otherwise command. It is, substantially, that he did not hear anything said by the testator at the time the will was signed, although he thinks he would have heard *296anything that was said, and that he did not hear done, what three witnesses, who are all disinterested, say was done, namely, the reading of the will, in whole or in part, in the presence of the testator. I am aware of the importance of the rule, that when there is a conflict of evidence, the decision predicated of it should not he disturbed, in the absence of strong grounds therefor; but in this case I think the evidence in conflict is so inferior, when compared with that given for the proponent, in quantity, quality and disinterestedness, that the decree of the surrogate should be reversed, and a feigned issue ordered, to try the question whether the will was executed and published by the testator as his last will and testament. I think this the better course; although in the cases of Peck v. Cary, (27 N. Y. Rep. 9,) and the Matter of Borman’s will, (54 Barb. 276,) which present many coincident features attending the execution of the wills considered, the courts passed upon the sufficiency of such execution. I entertain no doubt of the power of the court to direct the issue. (See Mead v. Mead, 11 Barb. 661.)

The capacity of the testator to make a will was not -questioned by the surrogate. He arrested further evidence on that subject by the proponent; and we must assume that the only questions passed upon by him were the execution and publication of the will by the testator. The evidence bearing upon the subject of the testator’s capacity developed the fact that he said, in conversations which demonstrated his intelligence, had with two persons after his will was made, that he had setled his affairs, and to one of them that he had appointed John S. McKinley, the proponent, to settle them.

For these reasons I think the decree of the surrogate should be reversed, and an issue framed, to be held at the circuit. •

Ingraham, P, J., concurred.