Von Hoffman v. Ward

The Surrogate.—The testimony shows that the decedent was above twenty-one years of age when he executed the instrument propounded, and died, That in 1857, the decedent’s mother, for some domestic reason not disclosed, separated from her husband, who still resides in this city, and that she, with her infant son and her mother, and after she had received a conveyance — 257 — from her husband of a house and lot in this city, from which she derived her support, went to Europe for economy of living, and to educate her son. That they sojourned at different places in Europe, the mother sometimes living apart from her son, who was away at school, and that she from time to time corresponded with her brother-in-law, Mr. Von Hoffman, a resident in this city. Mr. Von Hoffman visited Europe several times and saw the mother, upon which occasions she uniformly spoke of sending her son, when he was properly educated, to Mr. Von Hoffman, with the intention of his entering and continuing in his employ. A short time before the death of the mother, which occurred a few days after that of her son, she wrote to Mr. Von Hoffman under date of July 11, 1886, that she bequeathed her .son to Mm, and invoked his kind interest in Mm, stating that she left him without support, to his guidance and protection. The decedent’s father testified, that his wife, her mother, and the decedent, when they went to Europe, went there with the intention of permanently residing there. But it also appears, that after decedent’s demise, and before it was discovered that he had left a will, the father petitioned for letter's of administration to the Surrogate of this county, which petition alleged tiiat decedent, at his death, was an inhabitant of the state of New York. But he also testified that his attention was not called to that statement in the petition. In Graham -u. Public Administrator (4 Bradf., 127) it was held that a domicil could be acquired only by residence with the intention of remaining at the new place of abode, and that intention alone was not sufficient, and — 258 — that for the purpose of succession every person must have a domicil somewhere ; and that the domicil of origin was not lost until a new one was acquired. In the Matter of Thompson (1 Wend., 43), the court adopted the definition of domicil by Yattel, as a fixed habitation in a place with an intention of always staying there. In Kennedy v. Ryall (67 N. Y., 379), it was said, at page 386, that, generally speaking, domicil and residence mean the same thing, and that an inhabitant is defined to be one who has his domicil in a place or a fixed residence there; and that the domicil of an infant necessarily is the same as that of his father. In Dupuy v. Wurtz (53 N. Y., 556), the question of' domicil is very fully discussed, with an elaborate discussion of the authorities upon the subject. In the case it was held that the domicil of origin would be presumed to continue until a new one should be acquired, and that, to effect a change of such purpose, there must be not only a change of residence, but an intention to abandon the former domicil. The facts in that case were as follows: The testatrix, resident of and domiciled in New York, went abroad with her husband in 1859, on account of her health, and spent a winter at Nice, occupying rooms at a hotel, and hired a room here to store her property by the year, spending her summers in traveling. She made her will at Nice iii 1868, executed in accordance with the laws of this state, but not according to the requirements of the French law. Up to that time she kept her house in New York city unoccupied, intending and expecting to return as soon as her health would permit. But at that time she began to' abandon the hope of restored health and of a return, still claiming, however, in her letters and in her will,' — 259 — her residence in Yew York. Afterwards she rented her house in Yew York, retaining one room to store some of her effects, and declared, in letters and orally, that she did not expect to return to her home in Yew York. In other respects she intended to live as before. She retained her investments in this state, and made nohe abroad. It was held, after full consideration, that the evidence failed to establish an intention to adopt a foreign domicil, and it not appearing that the testatrix had acquired a new domicil, as respects her succession, she did not lose, by her relinquishment of her plan of return, her domicil in Yew York, and that the will was valid. That case, as it seems to me, must be held to control this, as it seems to be a stronger case, in favor of a foreign domicil. The fact of the continued residence of decedent’s father in this country, and the general rule that an infant’s domicil is that of his father, seems not to have been overcome by the mere separation of the father and mother, there being no legal dissolution of the relation of husband and wife. And, it is clear, that until the decedent became of age, he had no power to establish a domicil for himself. Moreover, the proof is abundant that it was not the intention of the mother to change his domicil, even if she had the authority to make such change. The next and only question for consideration is, whether the instrument propounded was executed conformably to the requirement of our statute, as all the authorities seem to concur in the doctrine that the execution of a will of personal property depends upon the law of the domicil of the decedent, for its validity. — 260 — The substance of the testimony upon the subject of execution is as follows : [The Surrogate here states the substance of Mrs. Chymes’ testimony and then continues :] —The attestation clause states, in substance, that decedent declared to the witnesses that it was his testament, an expression of. his wishes, and that the witnesses affixed their signatures at decedent’s request, and that, he affixed his signature in. their presence, and it purports to be subscribed by four witnesses. In Remsen v. Brinkerhoff (26 Wend., 325) it was held, that where the attestation clause subscribed by the witnesses stated that the testator declared the instrument to be his last will and testament, the mere failure to recollect by the witnesses such a declaration, or other indication that the instrument was his will, would not be evidence, per se, of a non-compliance with the . requirements of the statute, and that in such a case, to prevent it from having the effect of a will, there must be affirmative proof of the want of publication. In Burk’s Will (2 Redf., 239), on an examination of the authorities it was held that publication on the part of the testator need not be in express words, but that it was sufficiently jshown by evidence, that in the hearing of both witnesses, a testatrix asked the witnesses to draw her will, and after hearing it read, approved and signed it. In Coffin v. Coffin (23 N. Y., 9), it was held that, where one of the witnesses, in the presence and hearing of the other, whose attendance had. been procured by the testator, asked the testator, “Do you request me to sign this as your will as a witness,” and testator said yes, this was sufficient as a request to both of the witnesses, and a publication of the will. In Thompson v. — 261 — Stevens (62 N. Y., 634), it appeared that the will was drawn at the request of the testator, by one of the witnesses, under his instructions, and decedent went out for one of the witnesses. The will was read to decedent by the draughtsman in the presence of that witness, when decedent took it, and read it and said it was ‘1 all1 rightthat they went to an adjoining room, where the other witness was, who read the will aloud, and the testator pronounced it correct; it was then signed in the presence of all, and handed to the witness who drew it, with a request to witness it; the testator then asked the witness that was brought in to do so, and the other witness was told in the presence of decedent that he was needed as a witness. It was held that the evidence showed sufficient declaration and request, and a substantial compliance with the statute. In Gilbert v. Knox (52 N. Y., 125), the attestation clause, subscribed by the witnesses, was a full one. The witness testified that he was present at the execution, and that the testator signed in the presence of the witnesses ; and the witness stated to the decedent that it was necessary that he should request the witnesses to sign his will, as such, and stated that that was decedent’s will, that he wished them to sign as witnesses; that this occurred after the signing, and before the witness subscribed, in the presence of the witness and decedent, but that the decedent made no reply, made no inquiry, but that he had no doubt the decedent heard what he said. The court held that this showed the intention of the testator to make a valid execntion of the will, and reversed the decree of the Surrogate, refusing probate, and directed the Surrogate to admit it. (See also Peck v. Cary, 27 N. Y., 9.) — 262 — In Remsen v. Brinkerhoff (supra), Judge Nelson, in speaking of the declaration required by the statute, said: “Any communication of this idea, or to this effect, will meet the object of the statute.” And in the same case (8 Paige, 496), the Chancellor said: “I think, therefore, there can be no reasonable doubt that if this will and this attestation clause, or this attestation clause alone, had been read over, in the presence and hearing of the testatrix, so that the witness should be fully satisfied that she knew and understood its meaning, a request to them to attest it as witnesses would have been such a recognition of the instrument as her will as to make a good execution thereof, according to the intent and spirit of the statute.” I entertain no doubt that the proof, in this case, establishes a sufficient publication of the instrument in question. The attestation clause, which was read to and by the decedent, states that it is decedent’s will. Ilis declaration, that he gives all to his mother, indicates not only that he clearly understood that he was disposing of his property by will, but that he so informed the subscribing witnesses, who witnessed the same. The will should be admitted to probate. Ordered accordingly.