Nelson v. McGiffert

3 Barb. Ch. 158, 1848 N.Y. LEXIS 201

• Court: New York Court of Chancery
• Decided: May 1, 1848
• Status: Published

Opinion

The Chancellor.

The execution of the will of July, 1832, was sufficiently proved, to entitle it to be recorded as a valid will Of "real and personal estate. It is true, the subscribing witnesses, after the lapse of eight years, did not all recollect whether they attested the execution of the will at the request of the testator, or at the request of McGiffert, the son-in-law, who was present at the same time. And one of them had a vague impression that it Was McGiffert that requested them tb subscribe the will as witnesses. One of the attesting witnesses, however, swore positively that they all attested the execution of the will at the request of the testator, and in his presence. And there was nothing drawn from that witness, on his cross-examination, to induce a belief that he entertained any doubt as to the facts which he swore to, tin his direct examination. And where one of the subscribing witnesses to a will swears that all the formalities required by the Statute were complied with, the will may be admitted to probate, notwithstanding the other subscribing witnesses may not be able to recollect the fact. (Jauncey v. Thorn, 2 Barb. Ch. Rep. 41.) Again; the attestation clause stated that the will was signed. sealed, and published by the testator as his last will and tesl ament, -in the presence of the attesting witnesses; who, at his' request, and in -his presence, subscribed their names as witnesses thereto. This, after a considerable lapse of time, and when it may reftsonabty be supposed that the particular circumstances, attending the execution of the will, have escaped the recolletition of the attesting witnesses, is a circumstance from which the court or a jury may infer that these requisites of the statute were complied with. In this case, too, all the witnesses testify to facts from which it may fairly be inferred that they attested the execution of the will in conformity to the wishes of the testator. For he went with his son-in-law to the store of one of the subscribing witnesses, with the will already prepared and ready for execution; apparently for the sole purpose of having it executed in the presence of such witness, and in the presence of others who were acquainted with the testator. And there is no pretence that the testator was not perfectly competent to-make a valid will, and to understand the -nature of the act he was about to perform. Not only the witnesses, -but the testator ■himself, must therefore have understood that they were witnessing the execution of the will, in conformity to his desire and wish; although he may not have said in terms, “ I request ■you and each of you to subscribe your -names as witnesses to this my will.” If such a formal request was necessary to be proved, in all cases, and the witnesses were required to recollect the fact, so as to be able to swear to -it after any considerable lapse of time, not one will in ten would be adjudged to be valid. .In the execution of wills the statute does not require any particular form of words to be used, by the testator, either In the admission of his signature, in the publication of the instrument As his will, or in the communication to the witnesses of his-request or desire that they should subscribe their names to the will as attesting witnesses to the fact of its due execution-by him. But it is sufficient if the formalities .required by the statUte are complied with in substance.

(a)

There is nothing in the testimony-in this case which cbuld justify the court in rejecting the will of 1832, upon the ground that the testator had been induced to execute it by fraud or undue influence. The evidence relied on to prove that the will was obtained by undue influence, is the testator’s declaration, made about five years afterwards, and when he was about to execute another will, that he had been influenced to make a former will, in which he had not done justice to his grandchildren. Such a declaration is wholly insufficient to authorize the court to reject the probate of a will duly executed, when the testator was in the possession of his mental faculties and entirely free from restraint.

The only remaining questions. are as to the due execution of the subsequent will of 1837, and its effect upon the will of 1832. There is no doubt as to the jurisdiction and power of the surrogate to receive proof that the will of 1832 was revoked by a subsequent will of the testator, and that such subsequent will had been fraudulently destroyed ; or that it was destroyed by the testator when his mind had become so impaired that he was incompetent to perform a testamentary act. The chancellar alone had the power to take proof of such a will for the purpose of establishing it as a testamentary disposition of the property of the decedent. But in resisting the probate of the instrument propounded by McGifferl as the last will and testament of the decedent, the heirs and next of kin had the right to introduce any testimony which would be sufficient to satisfy the surrogate that the instrument propounded was not in force ns a valid will at the death of the testator named therein.

The evidence of the witnesses on the part of the appellants, in this case, fully established the fact of the due execution of a testamentary paper by the decedent in 1837. But the appel lants entirely failed in showing that it was a revocation of the will of July, 1832,' or that it was inconsistent with that will, in any respect. Neither of the witnesses says any thing as to the contents of the testamentary páper of 1837; or that'it contained any clause revoking the will of .1832,' or any part thereof. A subsequent will does not revoke a former one, unless it con tains a clause of revocation, or is inconsistent with it. And where it is inconsistent with the former will in some of its provisions merely, it is only a revocation pro tanto. (Brant v. Wilson, 8 Cowen's Rep. 56.) Where a subsequent will is made, and there is no proof that it contained any clause revolting a former will, as in cases where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the court of king’s bench, in England, more than one hundred and fifty years since, in the case of Hutchins, lessee of Nosworthy, v. Bassett, (Comb. Rep. 90; 3 Mod. 203, S. C.) And that decision was subsequently affirmed, upon a writ of error, in the house of lords. (See Hungerford and Hill v. Nosworthy, Show. Cases in Parl. 146.) In the subsequent case of Harwood v. Goodright, (Cowp. Rep. 87,) which came before the court of king’s bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained ; although it was found by a special verdict that the disposition which the testator made of his property, by the last will, was different from that made by the first will, but in what particulars the' jurors could not ascertain. This case was also carried to the house of lords upon a writ of error; and the judgment of the court of king’s bench was affirmed. As these two decisions of the court of dernier resort in England were previous to the revolution, they conclusively, settle the law on the subject here. It is unnecessary, therefore, to examine the question as to the effect of the written declaration, which McGiffert obtained from the testator, stating that he had destroyed the last will for the purpose of reviving and giving effect to the first; or as to the capacity of the testator to do a testamentary act at the time when that written declaration was signed by him.

The decision of the circuit judge affirming the decree of the surrogate, must therefore be affirmed, with costs.

See Seguine v. Seguine, (2 Barb. Sup. Court Rep. 385, S.P.)