Peck v. Cary

38 Barb. 77, 1862 N.Y. App. Div. LEXIS 162

• Court: New York Supreme Court
• Decided: November 3, 1862
• Status: Published

Opinions

Leonard, J.

1. We can find nothing in the proof, or in the provisions of the will, to warrant the conclusion that the testator’s own mind was not fully and freely expressed.

2. The person who drew the will called the subscribing witnesses from an adjoining room, in the presence and hearing of the testator, who had already affixed his signature, and requested them to witness the will. There is no evidence showing any want of consciousness or intelligence of the testator, sufficient to incapacitate him from performing the act in question at this time. He said nothing in words, but sufficient transpired to show that he understood the business in which he was engaged. What was said by Mr. Morgan must be considered as said by the testator. He heard it, saw the witnesses come into his presence, and there sign the instrument as witnesses of its execution by himself. He gave no sign of dissent, but carried out the execution in the manner indicated by the request of Mr. Morgan to the witnesses, made in his hearing and presence. If the testator had been the speaker himself, and addressed the same language to the witnesses which was used by Mr. Morgan, in his hearing, there can be no doubt that within the case of Coffin v. Coffin, (23 N. Y. Rep. 9,) it was a sufficient acknowledgment and publication of the will, and request to the witnesses.

[New York General Term, November 3, 1862.

What was said by Mi-. Morgan was adopted by the testator as his own act and language. I think the whole proceeding, on the occasion of the execution of the will, warrants this conclusion.

The decree appealed from should be affirmed with costs.