Henry S. Belding, Appellant, v. Harriet P. Leichardt et al., Respondents

Henry S. Belding, Appellant, v. Harriet P. Leichardt et al., Respondents. (Argued May 25, 1874; decided June 2, 1874.) This was an appeal from a judgment of the General Term affirming a decree of the surrogate of the county of New Pork, admitting to probate the will of Samuel A. Belding. The probate was opposed upon the grounds, that the will was not executed according to the statute, that the testator was not of sound mind but was, at the time, incapable of making a will, and that the will was procured by undue influence. It was proved that the testator subscribed the will in the presence of both the attesting witnesses, that the attestation clause, which was in due form, stating all the requisites to make a full and formal compliance with the requirements of the statutes, was then and there written hy the attorney who drew the will. But one of the subscribing witnesses was called; the other resided in Texas, where he was at the time of probate; his signature was proved. The witness produced, testified, in substance, that the will was read to the testator by the attorney, and the former declared it to be his will; .that the testator either asked the witnesses to sign, or, upon being asked by the attorney if he desired they should do so, either by nodding his head or in words expressed such a desire, and that 'the witnesses signed in the presence of the testator. Held, that this evidence was sufficient to justify the finding of a compliance with the statute. The evidence upon the questions of mental capacity and undue influence was conflicting. Held, that it was sufficient to sustain the findings of the surrogate. Edwards Pierrepont and Albert Day, for appellant. Winchester Britton, for respondents. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.