In re Proving the Last Will & Testament of Delprat

New York Surrogate's Court

In re Proving the Last Will & Testament of Delprat

1 Mills Surr. 75, 27 Misc. 355, 58 N.Y.S. 768

CourtNew York Surrogate's Court

DecidedMay 15, 1899

StatusPublished

Cited by6 cases

This text of 1 Mills Surr. 75 (In re Proving the Last Will & Testament of Delprat) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Proving the Last Will & Testament of Delprat, 1 Mills Surr. 75, 27 Misc. 355, 58 N.Y.S. 768 (N.Y. Super. Ct. 1899).

Pincite

Opinion

Fitzgerald, S.

The instrument offered for probate purports to have been subscribed by the decedent and signed by two witnesses. There is a full attestation clause. One of the subscribing witnesses cannot be found. The other, a French woman, was examined by commission and testified that the decedent subscribed the will in the presence of both witnesses, and requested her to sign the “ instrument ” as a witness; that she so- signed and that she saw the other witness sign. She testified positively that the decedent did not declare that the intrument was her will, at least not in the French language, and that the witness did not understand the English language in which the decedent conversed with the other subscribing witness. The husband testified that he was present at the time of execution and heard all that was said by the decedent to the subscribing witnesses; that he asked the missing witness to sign the instrument, and that neither the decedent nor he informed the witnesses that the instrument was her will. The only evidence of a declaration by the decedent is a statement to that effect in the attestation clause. When supported by other proof, the attestation clause becomes very important, and upon such- combined evidence wills have been sustained where the witnesses failed to recollect what took place at the time of execution, and even where they testified that the acts required by the statute had not been performed. The formal proof may not, however, he presumed from ,the attestation clause alone and against positive credible testimony. Woolley v. Woolley, 95 N. Y. 231; Lewis v. Lewis, 11 id. 220. The decedent requested the witness to sign the “ instrument.” The description of the paper by the witness as a “ will or agreement,” or as an “ instrument in ■ writing ” is insufficient. Rutherford v. Rutherford, 1 Den. 33; Wilson v. Hetterick, [77]*772 Bradf. 427. It must be made to appear unequivocally that the testamentary character of the instrument was communicated by the testator to the witnesses. Lewis v. Lewis, 11 N. Y. 220; Ex parte Beers, 2 Bradf. 163.

Probate denied.

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Fitzgerald, S.

The instrument offered for probate purports to have been subscribed by the decedent and signed by two witnesses. There is a full attestation clause. One of the subscribing witnesses cannot be found. The other, a French woman, was examined by commission and testified that the decedent subscribed the will in the presence of both witnesses, and requested her to sign the “ instrument ” as a witness; that she so- signed and that she saw the other witness sign. She testified positively that the decedent did not declare that the intrument was her will, at least not in the French language, and that the witness did not understand the English language in which the decedent conversed with the other subscribing witness. The husband testified that he was present at the time of execution and heard all that was said by the decedent to the subscribing witnesses; that he asked the missing witness to sign the instrument, and that neither the decedent nor he informed the witnesses that the instrument was her will. The only evidence of a declaration by the decedent is a statement to that effect in the attestation clause. When supported by other proof, the attestation clause becomes very important, and upon such- combined evidence wills have been sustained where the witnesses failed to recollect what took place at the time of execution, and even where they testified that the acts required by the statute had not been performed. The formal proof may not, however, he presumed from ,the attestation clause alone and against positive credible testimony. Woolley v. Woolley, 95 N. Y. 231; Lewis v. Lewis, 11 id. 220. The decedent requested the witness to sign the “ instrument.” The description of the paper by the witness as a “ will or agreement,” or as an “ instrument in ■ writing ” is insufficient. Rutherford v. Rutherford, 1 Den. 33; Wilson v. Hetterick, [77]*772 Bradf. 427. It must be made to appear unequivocally that the testamentary character of the instrument was communicated by the testator to the witnesses. Lewis v. Lewis, 11 N. Y. 220; Ex parte Beers, 2 Bradf. 163.

Probate denied.

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1 Mills Surr. 75, 27 Misc. 355, 58 N.Y.S. 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proving-the-last-will-testament-of-delprat-nysurct-1899.

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