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N. Y. Superior Court.—Brown v. DeSelding. in her last illness. His whole acquaintance with her was but of eight days' duration, and he visited her from five to ten times only. On one of his professional visits on one of the last days of June, a few days before her death, perhaps four or five, he found Mrs. DeSelding in the room with Herriott Brown, who was lying in bed. No other person was present. Mrs. DeSelding said to Dr. Johnston, that her sister wished to sign a will. Dr. Johnston remarked, if she wished to do so, it would be best to have another witness, and that she had better execute it at once, and thereby relieve her mind. Herriott Brown did not say any thing, and did not join in the conversation at all. Dr. Johnston remarked, that he would step out and call in another person to be also a witness, and did so. He crossed the street and found Alexander N. Zevely, and at Dr. Johnston's instance he came over and signed the instrument in question as a witness. Mr. Zevely had not any acquaintance whatever with Herriott Brown, had never seen her before, and never spoke to her or saw her after the occasion of his signing his name to this paper. When Dr. Johnston returned with Mr. Zevely to the house of Mr. DeSelding, he left Mr. Zevely in the parlor and proceeded to the room of Miss Brown. When he entered the room, the instrument in question was lying on a table. This is the first appearance of the paper. The doctor informed Herriott Brown, who was still lying in bed, that she must get up and sit at the table to sign it. His language was, that “if she wished to sign, or to sign her will,” but which, he cannot say, " she must get up, or be helped up, and get to the table.” With the assistance of Mrs. DeSelding she got up and went to the table, where the paper was then lying. When Mr. Zevely came up stairs, Herriott was sitting up in an arm-chair near the window. He was introduced to her and Mrs. DeSelding by Dr. Johnston. Miss Brown inclined her head in recognition, but did not speak. From a difficulty in her breathing, it was apparently hard work for her to talk. “Soon after or at the time of his introduction.” according to Mr. Zevely, “Dr. Jobnston mentioned to Herriott Brown, that Mr. Zevely was a person whom he had invited to come in and witness her signature to her will.” Johnston in his testimony stated all the conversation which he remembered, and did not give this remark. He testified that Miss Brown “inquired where she must sign the will, and on the place being pointed out, she took the pen and signed.” Mr. Zevely said, “she distinctly asked where the proper place was for her to sign.” In a subsequent portion of his testimony, he spoke of “her question about where to sign,” and in another, of “ her asking the question about the place where to sign the will.” She signed the paper in the presence of Dr. Johnston, Mr. Zevely and Mrs. De Selding. Although very weak, she wrote with apparent ease, and in a firm hand. Dr. Johnston and Mr. Zevely then signed their names to the paper as witnesses, in the presence of Herriott Brown, and of each other.

No conversation whatever took place between Herriott Brown and the witness Zevely, at the time the paper was signed. No other conVOL. VIII.

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N. Y. Superior Court.-Brown v. DeSelding. versation than is above given took place between her and the witness Johnston, except it may have been some questions and answers respecting her disease. There was not any conversation or remark of Mrs. DeSelding, except in reply to some question of the doctor relative to certain food taken by Herriott Brown. The instrument was not in Herriott Brown's handwriting, and nothing was said as to who had written it or prepared it for her. She did not say any thing concerning its contents. She did not read it and it was not read over to her. Mrs. DeSelding conducted the execution throughout. Both the witnesses testified to Miss Brown's capacity and soundness of mind, and that she acted like a person who fülly knew and understood what she was doing. Mr. Zevely's testimony on this point was of course deficient from his very limited acquaintance with the deceased.

Isaac Dayton, for the appellant, argued the following points:

I. The will was not duly executed according to the statute, prescribing the manner of the execution of wills, 2 R. S. 63, § 32, [Sec. 40.] Brinckerhoff v. Remsen, 8 Paige, 488, 498 ; Remsen v. Brinkerhoff, 26 Wend. 325, 331, 336, 337; Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92.

II. The instrument in question not being in the handwriting of the deceased, and its execution having been conducted in the last illness of the deceased, by Mrs. DeSelding, at her residence, who by her children or herself, takes under it, the whole property of the deceased, to the exclusion of her only other sister, equally entitled by kindred, the testimony in the cause was not sufficient to establish it as the will of the deceased.

In such cases the law requires in addition to evidence of capacity, that there should be proof either of previous intentions to make the dispositions contained in the alleged will, or of instructions, or of reading over at the time of execution, or of subsequent recognition of the provisions of the instrument. Swinburne, Part II., Sec. XXV., 7th Ed., Vol. I., pp. 187, 188 ; Taylor on Evidence, 108, § 105 ; Brogden v. Brown, 2 Add. 441; Billinghurst v. Vickers, 1 Phill. 187 ; Paske v. Ollatt, 2 Phill. 323 ; Ingram v. Wyatt, 1 Hagg. Eccl. Rep. 384; Marsh v. Tyrrell, 2 Hagg. Eccl. Rep. 84; Panton v. Williams, 2 Curteis' Eccl. Rep. 530, 555 ; Barry v. Butlin, 2 Moore Priv. Coun. Cas. 480; Dufaur v. Croft, 3 Moore Priv. Coun. Cas, 145; Harwood v. Baker, 3 Moore Priv. Coun. Cas. 282; Tomkins v. Tomkins, 1 Bailey South Car. Rep. 96 ; . Alston v. Jones, decided in Sup. Court, Gen. Term, 1st June, 1848; Crispell v. Dubois, 4 Barb, Sup. C. Rep. 393.

III. Both the witnesses to the instrument in question, residing without the jurisdiction of this state, the surrogate had not jurisdiction to take the proof of the instrument, as a will of real estate. 2 R. S. 66, $ 78, [Sec. 63.]

IV. The decree of the surrogate should be reversed, and the proceedings remitted to the surrogate with directions to grant administration, as in cases of intestacy.

N. Y. Superior Court.-Brown v. DeSelding. Mr. Edgar Ketchum, for the respondent, argued the following points :

1. The will was proved to have been executed in a manner substantially to comply with all the requisites of the statute. Remsen v. Brinckerhoff, 26 Wend. 325; Rutherford v. Rutherford, 1 Denio, 33 ; Butler v. Benson, 1 Barb. 534; Doe v. Doe, 2 Barb. 200 ; Seguine v. Seguine, Ib. 385; Robertson v. Caw, 3 Barb. 416; Chaffee v. Baptist Mission Convention, 10 Paige, 85; Jauncey v. Thorn, 2 Barb. Ch. R. 40; Nelson v. M'Giffert, 3 Barb. Ch. R. 162; Crispell v. Dubois, 4 Barb. 394 ; In the matter of the will of Henrietta Hicks, MS. decision of Surrogate, N. Y.; In the same matier, MS. decision of Hon. J. W. Edmonds, on appeal.

II. The capacity of the testatrix was abundantly proved. Stewart's Err v. Lispenard, 26 Wend. 255; Blanchard v. Nestle, 3 Denio, 37.

III. The will is just such a will as the testatrix would be expected to make, considering all the circumstances.

IV. The surrogate had complete jurisdiction in this case, and the will has been properly received to probate as a will of real and

personal estate. 2 R. S. 60, $ 23; Laws of 1837, 524, Chap. 460, 91; 2 R. S. 67, § 63; Laws of 1837, 537, Chap. 460, $ 77 ; Dayton on Surrogates, 38.

By the Court. Mason, J.—The thirty-second section of the statute of wills, enacts that every last will and testament shall be executed and attested in the following manner :

1. It shall be subscribed by the testator at the end of the will.

2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.

4. There shall be at least two attesting witnesses, each of whom shall sign bis name as a witness, at the end of the will, at the request of the testator. 2 R. S. 63.

In the case before us the will was subscribed by the testatrix, at the end of the will

, in the presence of two attesting witnesses, each of whom signed his name as a witness at the end of the will—and the only questions are, 1st. Did each so sign at the request of the testatrix; and, 2d. Did the testatrix at the time of such subscription declare the instrument to be her last will.

As to the first question—It is not necessary that the testator should in terms request the witnesses to attest the execution. The request may be implied as well as expressed. If they are sent for by his attendants in his presence and without objection—if upon their introduction he sets himself to the execution of the will, and delivers it when executed to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of bis friends, and makes their request his request, within the spirit and N. Y. Superior Court.-Brown v. DeSelding. meaning of the statute. This was so held in Doe v. Roe, 2 Barb. S. C. R. 200. It was stated in that case to the witnesses, in the testator's presence, that they had been sent for for the purpose of being witnesses to the will, and they subscribed their names as witnesses, after the will with the attesting clause had been read to the testator, and signed by him in their presence--and it was held that there was sufficient evidence to be submitted to a jury, upon the question whether there was a request or not. The same point was decided in Rutherford v. Rutherford, 1 Denio, 33.

The testatrix in this case made no formal request to the witnesses. She appears to have been entirely silent; but when Mrs. De Selding stated to Dr. Jonnston, the physician, that her sister wished to execute a will, he said, if she wished to do so it would be best to bave another witness, and he went out immediately and brought in Mr. Zevely, the other witness. The testatrix made no objection then, nor when the doctor returned ; on the contrary, she got up and went to the table where the will was lying. Upon Mr. Zevely's coming into the room, after she was seated at the table, he was introduced to her by the doctor as a person whom he had invited to come in and witness her signature to the will, and she bowed her head in recognition--and then distinctly asked where she must sign, according to Zevely's testimony, or according to Dr. Johnston's, where she must sign the will. She then signed it in their presence, and they signed their names as witnesses. There can be no doubt from all the circumstances, that she assented to and adopted the acts of her sister and Dr. Johnston in relation to the latter witnessing and inviting Mr. Zevely to witness the execution—and this ratification and adoption is clearly equivalent to an express request by her.

The next question is–Did she declare the paper to be her last will and testament in the presence of the witnesses ? It has frequently been decided that no particular form of words is necessary in the publication of a will in order to comply with the statute. It is sufficient if the requisitions of the statute are complied with in substance. Nelson v. McGiffert, 3 Barb. Ch. R. 163; Remsen v. Brinckerhoff, 26 Wend. 332. In Doe v. Roe, 2 Barb. S. C. R. 200, before cited, the will was read over to the testator, and he was asked if that was his will and testament, to which he answered in the affirmative, and then signed it; and the court held that this mode of declaring the instrument to be his will was a substantial compliance by the testator with the statute. But it is definitively settled by the court of dernier resort, in Remsen v. Brinckerhoff, that there must be some communication to the witnesses by the testator indicating that he intended to give effect to the paper as his will; and therefore the court in that case held that although the testatrix acknowledged before the witnesses her signature to the instrument for the purposes therein mentioned, yet as she did not say it was her will, it could not be upheld without a repeal of the statute. Now, in the case before us, nothing whatever was said by the testatrix, except the single question where she must sign. Dr. Johnston says she asked where she must sign the will; but is evi

N. Y. Superior Court.-Brown v. DeSelding.

dent that he does not intend to give the exact words. Mr. Zevely says she distinctly asked “where was the proper place for her to sign.” But the will was not read to her before signing it, nor did she read it or say any thing concerning its contents, nor was any thing said or done by her in the presence and hearing of the witness Zevely, by which she signified to him that the paper subscribed by her was her last will; she merely signed the paper, and did not even acknowledge her signature as was done by Mrs. Brinckerhoff. It is true that the witness understood from what passed that the instrument was a will, and that such was her understanding also; but there was no recognition of it as her will in Zevely's presence beyond the simple signature, nor in the presence and hearing of Dr. Johnston, unless she used the word will when she asked about the place to sign. It is fairly to be inferred in the case of Mrs. Brinckerhoff that all parties also understood the paper to be a wlll; one of the witnesses put his residence opposite to his name, and the testatrix remarked to the other witness that he had not done so, and required him to do it, which would have been unnecessary in attesting the execution of any other instrument. But yet the court held the acknowledgement to be insufficient. If we should hold the mere signing of a will, or any act equivalent to it, without any declaration, either before or after signing, in the presence and hearing of each of the witnesses, to be a sufficient publication, we should disregard the plain letter of the statute, which requires that the testator shall, at the time of making the subscription, declare the instrument to be his last will. The utmost that can be said of this case is, that the conduct of the testatrix implied the instrument to be her will. But no declaration of any kind is pretended. We do not see how it is possible to get over this defect.

It is not without considerable hesitation that we have arrived at this result. We have no doubt, from the evidence, that the deceased was fully competent to make a will, and under the law as it now exists in England, and as it was understood in this state before the passage of the Revised Statutes, this will would have been held to have been duly published. But the Revised Statutes have somewhat altered the rule, and the alteration is, we think, wise and salutary. Whether it is so or not, it is our duty to carry out the provisions of the statutes on this subject in their leiter and spirit. If we are mistaken in our application of them to the present case, we are happy to know that our mistake.can be corrected by a higher tribunal.

The decree of the surrogate is erroneous, and must be reversed, and a decree must be entered declaring the invalidity of the instrument propounded as a will, and that the decedent died intestate. Costs of both parties, both in this court and in the court below, are to be paid out of the estate when letters of administration shall have been granted, and the proceedings are to be remitted to the surrogate of the city and county of New-York, to the end that administration may be granted as in cases of intestacy.

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