In re Burn's Will

Appellate Division of the Supreme Court of New York

In re Burn's Will

84 N.Y.S. 554, 88 A.D. 611

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1903

StatusPublished

This text of 84 N.Y.S. 554 (In re Burn's Will) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Burn's Will, 84 N.Y.S. 554, 88 A.D. 611 (N.Y. Ct. App. 1903).

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Opinion

GOODRICH, P. J.

The instrument in question is an informal document in the handwriting of the decedent’s wife, and reads as follows :

“7 5th Avenue, New Rochelle, March 26th, 1902.

“This is my last will and testament. I do hereby give to my wife Catherine Burns everything I possess Money & Jewelry stocks, real estate and Bonds & Everything. James Burns.

“Witnesses:

“Nellie Hayden.

“Edward Crudden.”

Edward Bums, a brother of the deceased, filed objections to the probate that the will was not signed, published, and declared by the testator in the manner prescribed by law, that the decedent was not of sound mind, and that the execution of the instrument was obtained by the fraud, circumvention, and undue influence of Catherine Burns, the beneficiary named therein. As to the last two objections, there is no evidence whatever in the record to sustain either of them. The only question before us is whether the instrument was executed in accordance with law as the last will of the deceased. James left no children. He had been sick for seven months with heart disease and dropsy, and under the care of Edward Crudden, a professional nurse, and one of the subscribing witnesses. James told Crudden to call Nellie Hayden, the' other subscribing witness, and she went to the room where James was sick in bed. He signed the instrument in her presence, declared to her that it was his will, and asked her to sign it as his will, which she did. He then told her to call Crudden. He asked Crudden “to sign this last will that he made.” Crudden read the instrument, and signed as a witness. There is some evidence of an affidavit.made by Crudden, which is somewhat inconsistent with his evidence before the surrogate, but the learned surrogate has found as matter of fact that the testator signed the will in the presence of [555]*555Nellie Hayden, and acknowledged his signature to Crudden, declared to both that it was his will, and that the two, at his request, signed as subscribing witnesses. This evidence justified the finding of the learned surrogate in admitting the will to probate.

The decree should be affirmed, with costs to the respondent, and costs and disbursements to the special guardian. All concur.

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GOODRICH, P. J.

The instrument in question is an informal document in the handwriting of the decedent’s wife, and reads as follows :

“7 5th Avenue, New Rochelle, March 26th, 1902.

“This is my last will and testament. I do hereby give to my wife Catherine Burns everything I possess Money & Jewelry stocks, real estate and Bonds & Everything. James Burns.

“Witnesses:

“Nellie Hayden.

“Edward Crudden.”

Edward Bums, a brother of the deceased, filed objections to the probate that the will was not signed, published, and declared by the testator in the manner prescribed by law, that the decedent was not of sound mind, and that the execution of the instrument was obtained by the fraud, circumvention, and undue influence of Catherine Burns, the beneficiary named therein. As to the last two objections, there is no evidence whatever in the record to sustain either of them. The only question before us is whether the instrument was executed in accordance with law as the last will of the deceased. James left no children. He had been sick for seven months with heart disease and dropsy, and under the care of Edward Crudden, a professional nurse, and one of the subscribing witnesses. James told Crudden to call Nellie Hayden, the' other subscribing witness, and she went to the room where James was sick in bed. He signed the instrument in her presence, declared to her that it was his will, and asked her to sign it as his will, which she did. He then told her to call Crudden. He asked Crudden “to sign this last will that he made.” Crudden read the instrument, and signed as a witness. There is some evidence of an affidavit.made by Crudden, which is somewhat inconsistent with his evidence before the surrogate, but the learned surrogate has found as matter of fact that the testator signed the will in the presence of [555]*555Nellie Hayden, and acknowledged his signature to Crudden, declared to both that it was his will, and that the two, at his request, signed as subscribing witnesses. This evidence justified the finding of the learned surrogate in admitting the will to probate.

The decree should be affirmed, with costs to the respondent, and costs and disbursements to the special guardian. All concur.

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Bluebook (online)

84 N.Y.S. 554, 88 A.D. 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-burns-will-nyappdiv-1903.