In re Proving the Last Will & Testament of Raymond

New York Surrogate's Court

In re Proving the Last Will & Testament of Raymond

12 Mills Surr. 283, 86 Misc. 359, 149 N.Y.S. 216

CourtNew York Surrogate's Court

DecidedJune 15, 1914

StatusPublished

Cited by2 cases

This text of 12 Mills Surr. 283 (In re Proving the Last Will & Testament of Raymond) 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 Raymond, 12 Mills Surr. 283, 86 Misc. 359, 149 N.Y.S. 216 (N.Y. Super. Ct. 1914).

Pincite

Opinion

Cohalan, S.

Emma Marcy Raymond, the testatrix, was a woman about eighty years of age at the time the paper offered for probate was excuted. She drafted the will herself, guided only by a book relating to such matters. The testestatrix wrote or copied an attestation clause which omitted the usual statement of the request to the subscribing witnesses. [284]*284In the attestation clause the testatrix wrote attending ” for “ attesting.” It also states that the instrument was signed by the testatrix in the presence of both of the attesting witnesses, though the instrument was signed by the testatrix in the presence of only one of the subscribing witnesses. The fact that the testatrix did not correctly copy the attestation clause from the book of instructions sufficiently indicates that she did not appreciate the necessity of strictly complying with all the usual formalities. The execution of the paper was directed by Searing, the notary public, whose lack of knowledge of such matters is shown by the fact that he attached to the will an acknowledgment of the witnesses’ signatures. Under these cirmumstances there is no presumption or inference of proper execution. Upon consideration of the testimony and all the circumstances of the case I am convinced that there is no conspiracy by Searing and the two> subscribing witnesses to destroy the will. I believe that these three witnesses are worthy of belief in the substantial details of their testimony. I am of opinion that there was no publication, no legal request made to the subscribing witnesses to act as such, and no acknowledgment to the witness Gumming, who was not present when the testatrix signed and who did not see her signature. Any one of these defects would be sufficient to defeat probate. The instrument was written by the testatrix and evidently expresses her free desires in regard to the disposition of her property, which is said to be worth about $250,000. But as long as wills continue to be executed under the supervision of notaries public, who presume to take the place of lawyers, and as long as those who execute wills under such conditions continue to practice such questionable economy, probate courts will be constrained to reject many of such instruments. The paper propounded must be refused probate.

Probate refused.

Free access — add to your briefcase to read the full text and ask questions with AI

Cohalan, S.

Emma Marcy Raymond, the testatrix, was a woman about eighty years of age at the time the paper offered for probate was excuted. She drafted the will herself, guided only by a book relating to such matters. The testestatrix wrote or copied an attestation clause which omitted the usual statement of the request to the subscribing witnesses. [284]*284In the attestation clause the testatrix wrote attending ” for “ attesting.” It also states that the instrument was signed by the testatrix in the presence of both of the attesting witnesses, though the instrument was signed by the testatrix in the presence of only one of the subscribing witnesses. The fact that the testatrix did not correctly copy the attestation clause from the book of instructions sufficiently indicates that she did not appreciate the necessity of strictly complying with all the usual formalities. The execution of the paper was directed by Searing, the notary public, whose lack of knowledge of such matters is shown by the fact that he attached to the will an acknowledgment of the witnesses’ signatures. Under these cirmumstances there is no presumption or inference of proper execution. Upon consideration of the testimony and all the circumstances of the case I am convinced that there is no conspiracy by Searing and the two> subscribing witnesses to destroy the will. I believe that these three witnesses are worthy of belief in the substantial details of their testimony. I am of opinion that there was no publication, no legal request made to the subscribing witnesses to act as such, and no acknowledgment to the witness Gumming, who was not present when the testatrix signed and who did not see her signature. Any one of these defects would be sufficient to defeat probate. The instrument was written by the testatrix and evidently expresses her free desires in regard to the disposition of her property, which is said to be worth about $250,000. But as long as wills continue to be executed under the supervision of notaries public, who presume to take the place of lawyers, and as long as those who execute wills under such conditions continue to practice such questionable economy, probate courts will be constrained to reject many of such instruments. The paper propounded must be refused probate.

Probate refused.

Cite This Page — Counsel Stack

Bluebook (online)

12 Mills Surr. 283, 86 Misc. 359, 149 N.Y.S. 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proving-the-last-will-testament-of-raymond-nysurct-1914.

Opinion

Related

Cite This Page — Counsel Stack