In Re the Revocation of the Last Will & Testament of Nelson

Finch, J. This appeal is from an affirmance by the General Term of an order of the surrogate of Dutchess county refusing to revoke the probate of the last will of Homer A. Nelson. No question is raised as to the capacity of the testator or his freedom from any undue or improper influence, and the whole contest is over the inquiry whether the statutory requirements for the due execution of the will were all-observed. That is a question of fact upon which the findings, are conclusive unless it appears in the record that there is no-evidence tending to sustain, them, and our examination of the, case must be directed to that inquiry. It may be narrowed still further. The will bears "the signature of the testator and the attestation clause those of Baker and Keller, the two subscribing witnesses. There is not the least doubt of the genuineness of all these signatures. It is also certain that they were appended on the day of the execution of the will and before Keller left the room, for he says that Baker put the will in an envelope and took it away at the request of the-testator, and at least twelve years thereafter, Baker liavingdied, the will in its envelope was delivered to the testator, who opened the package and examined the instrument and receipted for it as his will. That the testator on March 3d, 1878, which was the date of the attestation, knew perfectly that he was engaged in a testamentary act is evident not only from what occurred in his presence, but from his own later-statement of the reason which induced him to make his will on that occasion. Baker knew the exact nature of the transaction, for he drew the will and superintended its execution. And Keller knew it, not only from what was said to him, but. from his repeated description of the scene as a solemn occasion. The attestation clause was read aloud by Baker in the presence and hearing of the testator and Keller, so that the testator knew what it recited as emanating from him, and' *156 the witnesses what it declared as having occurred in their presence. To all that was thus represented to have been said or done by the testator he assented by the approval of silence, if nothing more, and the witnesses knowing its recitals certified to their truth by their signatures. The attestation clause is always some proof of the due execution of the will (Matter of Will of Cottrell, 95 N. Y. 339), and where beyond its presence the proof is that it was read aloud in the hearing of testator and witnesses with -at least the silent assent of all concerned to its statement of facts, it cannot be denied that' there is some, and quite per-suasive evidence of the actual occurrence of the facts recited. When Baker read the statement, obviously speaking for the testator and in his behalf, that he had signed, published and •declared the instrument in question as and for and to be his last will and testament, his silent assent to the declaration, if he was so silent, furnished evidence of his concurrence and approval: evidence upon -which the witnesses at once acted and without hesitation, and which is put beyond the possibility of mistake by the testator’s after recognition of the will as an existing, executed and completed instrument. If the attestation clause thus read and adopted had been full and perfect it would have served, in connection with the other proof, to have justified the probate; but it was not full and perfect, owing to the omission of one of the needed requirements, and it is about that one, omitted from the recital, probably by accident, that it is possible reasonably to contend that, there was an utter failure of evidence. That omission was of a request by the testator to the witnesses to sign the will as such, and is open to dispute not only because so omitted, but because the surviving witness denies the fact. He admits, however, that Baker, in the presence of the testator, requested the witness to sign the will, but denies that the decedent in any manner ■assented, unless by silence, and takes from- that some of its force by representing him as apparently inattentive. This witness was Judge Nelson’s coachman, who had been in his -service for many years, but was disappointed in not-find *157 ing in tlie will some legacy for himself. His evidence as a, witness was strongly contradicted by his own earlier statement to Mr. Lown that when he came into Judge Nelson’s room the latter said that he wanted him to witness his will. It is thus certain that either Baker, speaking in behalf of the testator, or the latter himself made that request, and it is much the most probable that it came from the testator. Somebody sent for the coachman with the view of making him a subscribing witness to the will. Mrs. Nelson was not at home, and Miss Laura Nelson was not present, and does not appear to have even been aware of what was transpiring. The summons came from the room where the testator and Baker were alone together, and must have been directed by the testator’s selection, or, at all events, with his assent, and when Keller came into the room it is quite certain that one of the two told him what he was wanted for. If it was Baker, as the witness testified, that was enough, for in doing so he plainly acted for the testator with his assent and in pursuance of ‘his selection. The request to sign is sufficient, if made by the person superintending the execution of the will, if in the hearing of the testator and with his silent permission and approval. That was held in Doe v. Roe (2 Barb. 205), and again in Peck v. Cary (27 N. Y. 9) and Gilbert v. Knox (52 id. 128). Judge Nelson himself was a lawyer of eminence and ability, well knowing-what was needed for the due execution of a will, and Baker was his partner and fully competent to perform the duty which he undertook, and it is not a reasonable supposition that they neglected any essential requirement. The accidental omission in the attestation might easily occur, and that it escaped the notice of both serves only to indicate the fatality which seems to attend the wills of distinguished lawyers. The proof of Judge Nelson’s declarations and acts, occurring after the execution of the will, was admissible to show his knowledge of the testamentary character of the instrument and to dispel any possible claim of mistake or imposition. Similar evidence has often been received, and we can see no ground on which it should have been excluded. *158 Taking all the facts together, they warranted the findings of the surrogate, and leave no doubt in our own minds that the will was projierly executed. The judgment should be affirmed, with costs. All concur. Judgment affirmed.