Seymour and wife v. Van Wyck et al.

Seymour and wife v. Van Wyck et al. Execution of Will. A testator must declare the instrument to he his will, in the presence of two witnesses ; it is not enough, that one of the subscribing witnesses attested the paper, at Ms request, without such declaration Appeal from a decree of the Supreme Court, reversing the decree of the surrogate of Westchester county, admitting to probate a codicil to the last will and testament of Peter Maison, deceased. There being no question about the due execution of the original will, dated the 18th September 1889, a decree was made admitting it to probate, without objection. But a codicil, dated the 29th July 1848, which materially changed the disposition of the estate, and named different persons as executors, was objected to, on the ground that the formalities required by the statute had not been complied with. *At the time of the execution of the alleged f codicil, the testator was upwards of 76 years of *- age, in very feeble health, and owing to his want of strength, conversation with him was difficult. One witness testified, that she attested the codicil at his request, saw him sign the paper, and heard him declare that it was an alteration of his will. *The other attest- „' ing witness signed at the testator’s request, but ! did not hear him say “that it was his last will or codicil, or anything of that kind.” *The paper was not ^ read by either of the witnesses, nor by the testa- *- tor, in their presence. It had a full attestation clause, was in the handwriting of his daughter, Mrs. Seymour, and at the head of the will, there was a line written by her, as follows: “This will has a codicil, dated July 29, 1848.” The surrogate made a decree declaring the codicil duly executed, which was reversed by the supreme court, on appeal; whereupon, the daughter and her husband appealed to this court. Noyes, for the appellants. Maison, for the respondents. [MAJORITY — Foot, J.] Foot, J. — The circumstances under which the codicil in question was prepared and executed, are unusual and unsatisfactory. The mildest result which can legitimately flow from them is, a close scrutiny of the evidence of its execution, for the purpose of ascertaining * 124 1 *wke*her the requirements of the law have been -* complied with, as these requirements are guards which the statute has set around the feeble in body and mind, to protect them, and the real objects of their, bounty from imposition and fraud. The rule is well settled, that the fact must be established by some satisfactory proof, that the testator, at the time of subscribing his name to the will, or acknowledging his subscription, declared the instrument to be his last will and testament, in the presence of each of the two subscribing witnesses. In this case, there is not satisfactory proof that the testator, at the time he subscribed the codicil in question, declared it to be a codicil to his will, in the presence of Caroline See, one of the subscribing witnesses. Decree affirmed, with costs. See, to the same point, Abbey v. Christy, 49 Barb. 276. It seems, however, to be sufficient, that the witnesses knew the instrument was a testamentary-paper, when they werr requested to sign. Dack v. Dack, 19 Hun 630.