In re the Probate of the last Will & Testament of Burke

The Surrogate. Though the will in this case is very informal, yet it seems to me, it has been executed in substantial conformity to the requirements of the statute. In Campbell v. Logan (2 Bradf., 98,) it is substantially held that where a testatrix desired a former will. to be altered, and a new will was drawn, and it was read to the testatrix and was signed by her, she holding the pen, and another party guiding it for her; she stating that the writing was sufficient, and asking the witnesses to sign the writing, though the witnesses could not remember that she declared it to be her last will, but only said, it was all right; such evidence established a substantial declaration by the decedent of the testamentary character of the instrument at the time of its execution. (See also Van Hanswyck v. Wiese, 44 Barb., 495.) In Moore v. Moore (id. at page 265), Surrogate Bradford said: “Ho particular form is ,requisite; all that the law requires is, that the testator shall communicate to the witnesses that it is his will, and he desires them to attest it; this can be done by reading, and other acts performed by a third person, provided an intelligent assent on the part of the testator be shown. Indeed, not a word of necessity need be said; a deaf mute might go through all the ceremony by means of a written communication.” In Vaughan v. Burford,(3 Bradf., 78), the same learned judge, at page 83, says, “ reading aloud before he signed, [243] followed by the act of signature, constituted a testamentary declaration.” And in Carle v. Underhill, (3 Bradf., 105,) the following language is used: “ when the testator in the presence of the subscribing witnesses dictates the provisions of the instrument—reads it aloud after it is drawn—signs it, and requests them, to give it their attestation, the substance of what the statute requires is performed; that is, he manifests it, and makes public and open, the nature of the act.” On the question of undue influence, in Blanchard v. Nestle, (3 Denio, 37), Judge Jewett says: “ a person has a right by fair argument or persuasion to induce another to make a will, and even to make it in his own favor. The procuring a will to be made by such means is nothing against its validity.” In Gardiner v. Gardiner (34 N. Y., 155), Mr. Justice Davies, at page 162, uses this language: “ undue influence must not be such as arises from the influences of gratitude, affection, or esteem, but it must be the control of another will over that of the testator, whose faculties have been so impaired, as to submit to that control, so that he has ceased to be a free agent, and has quite succumbed to the power of the controlling will.” The fact that there is no attesting clause to the instrument in question does not affect the validity of the will, as such clause is a part of the will, and is not required as a part of its due execution by any law. (Jackson v. Jackson, 39 N. Y., 153). It is true that the proof in this case shows that some of the provisions of the will were suggested by the subscribing witnesses, but I think there is an entire absence of proof to show the acquiescence of the testatrix in the suggestions, was not voluntary; indeed, her persistence in making provision for the children of Dillon [244] affords convincing evidence of her free will in that respect, and while her forgetfulness of her son’s claims upon her bounty may militate somewhat against her clearness of mind, yet it is quite evident, that the provision in behalf of her son, was neither unduly influenced or coerced, and the fact that her son had been long away from home, and all trace of him apparently lost, forms some excuse for her non-remembrance of him; and the fact of her living separate from her husband for many years seems to me a sufficient explanation of his not being remembered in the will. From the best consideration I have been enabled to give to the evidence in this case, and the questions of law involved, I am of the opinion that the will should be admitted to probate. Let a decree be entered accordingly.