In re the Probate of the Paper Propounded as the Will of Newton

1 Tuck. Surr. 349

• Court: New York Surrogate's Court
• Decided: July 1, 1870
• Status: Published

Opinion

: William F. Oakey propounded for probate the following testamentary paper:

London, October 2d, 1861.

I, A. Stuart Newton, do hereby state my last will and testament, being in full possession of my faculties, to wit: Leaving the capital of all my property in America, now under the trusteeship of Thomas 0. Amory, Esq., of Boston, to Edward G. Loring, Jr., of Boston, son of Judge Loring, to be delivered into his hands to use as seems to him fit.

Except the sum that shall be taken from said capital to pay all debts which I shall owe in full to the estate, ' and to my step-father, W. F. Oakey, of New York, for money lent me by him during the past year.

■ I name W. F. O. as my sole executor, to follow what I have written, as seems to him fit, after destroying my former will, now in my possession.

With regard to any other matters, I leave them entirely to him and my mother S. W. Oakey.

Signed in the presence of the .following witnesses on the over page.

A. Stuart Newton.

• A. Stuart Newton.

Witnessed by

• • C. Hook Appleton.

Martha E. Chadwick.

It 'appears, " as facts, that the decedent was the stepdaughter of William F. Oakey; the person named as executor. At the time of the date1 of the -'paper propounded, she was engaged to be married to the legatee, Edward GvLoring, Junior. In May, 1863, this engagement was terminated by the decedent, at her own instance, ' and "was1 never resumed. She died on the 29th day of July, 1863, at Lenox, Massachusetts. After her death, a duly executed will, left by her, was admitted to probate in the office of the Surrogate of Mew York,-and recorded. The existence of the present paper of later date," was not known till it was found by her mother in the month of January, 1864, among a mass of miscellaneous writings, cards, &c., in a box belonging to the decedent, which had remained thitherto unopenéd in this city, since her decease. ■ It was in an envelope, directed to “ Miss Mewton, care of W. F. Oakéy, Esq.”

The testimony of 'the two subscribing witnesses was ' taken under ¿ commission, "issued by the Surrogate.

Charles Hook Appleton, of Boston, testified: I was ' acquainted with the decedent from childhood; I was pre- • sent when' she signed her ñamé on the fourth'page, atfhé top (the second signature; above), and I signed my name at the' time ; it was done at Edwards Hotel, Hanover Squaré, London; she "asked me to witness her signature, Miss Chadwick ahd myself; it was in bur private "parlor; she liad beeñ writing at the. table for some time; I could not say how long; -it -was in thé forenoon; what" she had been writing" "I do" not- know,- Miss Chadwick signed after"'' me; "after the signing, Miss' Mewton lit a" candle, and ' placed her seal"upon-the instrument; she signed it on the top of the page, as I "was standing by her; she did not declare it wás her -will in my hearing, and I did not know that it was so;" she requested me to witness her signature; ■ her -exact" language I do not "recollect; she- showed me1: only- the, signature on -the top of -the - page, and, I saw no- " more of the " instrument; T immediately,; thereupon," aS-'' soon as she had signed on the top of the page, subscribed my name ; Miss, Chadwick was present at the time of such subscription ; I saw her sign her name as a witness; the decedent requested her to sign as a witness, and she did so sign, in her presence ; the decedent was of sound mind; she was undoubtedly so; she was about twenty-nine years of, age; the paper propounded is, in her, own handwriting. i

Martha E. Broggiotti, wife of Francis Broggiotti, of Boston, testified : My name, on the 2d day of October, 1861, was Martha Ellery Chadwick; I was acquainted with the decedent, and knew her intimately, from childhood ; the signature, “ Martha E.. Chadwick,” on the instrument propounded, is mine; I wrote it at Edwards’ Hotel, in . London; the decedent,, Mr. Appleton. and myself were present; whether any other person came into the room, I don’t remember; no one else took any part in, what was done 'there; I only remember.that I signed the paper with the knowledge that it was her will; the decedent asked me to sign something, but, whether she said then, it was her will, 1 do not remember; she had previously told me she was going to make her will, and I knew when I signed it; tiaat it was her will; but I do not recollect what was said at the. time,;. I remember that Mr. Appleton signed it at the. same time that I did; I do not recollect that the decedent said at the, time, that it was her will, but from, what took place, there; or had taken-place before, I. was satisfied, that I was signing my name as a witness to .her will; I had had,; a conversation with her, in reference to her making a ■will,:and had seen-her. commence to write something,-while in Paris,, where she said,. “ she was going to carry out her views as expressed before;” Mr. Appleton was present when I signed; my impression is, we were all standing together around the table, and that-Mr. Appleton and myself signed at the same time; I recollect of nothing further about the signing; the decedent was then perfectly , sound in mind,,.,. :

Upon this testimony the case was submitted to the Surrogate.

The Surrogate denied probate, on the ground that there was no proof of publication or declaration, of the paper, as' a will, to the subscribing witnesses.