Baker v. Woodbridge

66 Barb. 261, 1873 N.Y. App. Div. LEXIS 203

• Court: New York Supreme Court
• Decided: June 3, 1873
• Status: Published

Opinion

By the Court,

Parker, P. J.

We think the evidence of the execution and publication of the will fails to come up. to the requirement of the statute. Neither of the subscribing witnesses saw the testatrix sign it, and to neither of them did she acknowledge that she had signed it. And neither of them saw her name upon the instrument. Wright, one of the subscribing witnesses, testified that Saxton, who drew the will, and called him as a witness, said to him, in the presence of the testatrix, holding out to him a paper, so folded that he could not see the place where her signature now appears, “that is Mrs. Bell’s will“he requested me to put my name there, and place of residence.” The testatrix, so far as he recollects, said nothing, and in no way intimated her assent to what was said by Saxton. The other witness was also called in by Saxton, and came in as Wright was going out. He testified, “Mr. Saxton showed this will, and requested me to sign it; think that was all that was said or done. I signed it. He did not say what it was. Think Mrs. Bell did not say anything. Mr. Saxton had told me before I came down stairs from my office, that he wanted me to-come and witness Mrs. Bell’s will. Did not read the clause over my signature. Did not hear it read; had no knowledge what it Contained, more than what Saxton said before I came down stairs. Think I heard nothing said by Mrs. Bell, or any one in her presence, about its being a will. Don’t remember that Mrs. Bell said or did anything while I was there ; she sat on a sofa, when I signed the will—nodded her head or saluted me when I went in. Think Saxton said, here’s the document; sign your name and residence.’ Mrs. Bell did not sign her name to the will while I was there; can’t say that her name was signed to it when I was there; never saw her signature to the will before to-day; nothing said to her about her signing it; don’t remember anything said or done by any one, at this time, except what I have related.” Both of these witnesses say that the testatrix might have acknowledged the instrument as her will, and they forgotten it, but have no recollection that she did.

Mr. Saxton, who drew the will, was examined as a witness, and does not remember that he was present when it was executed ; did not see the testatrix sign it, and only knows that her name was signed to it when she took it away from his office, when it was executed.

The will was not executed in the manner required by the statute. The subscription by the testatrix was not made in the presence of the attesting witnesses, nor of either of them, neither was it acknowledged by her to them, or either of them: and to one of the attesting witnesses there was no declaration by the testatrix, or any one in her presence, that the instrument was her will. These requirements of the statute were neither formally nor substantially complied with; and hence the will was erroneously admitted to probate.

[Third Department, General Term, at Albany, June 3, 1873.

The decree of the surrogate must be reversed with costs, to be paid out of the estate.

Parker, Boardman and J. Potter, Justices.]