Vaughan v. Burford

The Surrogate. The instrument propounded for proof in this case, is in the following words: Hew York, September 15th, 1854. John Burford has 230 dollars in the Manhattan Savings Bank, Broadway. I do bequeath 230 dollars to Sarah Bur-ford at my death. John Burford. Witnesses. Thomas Lewis. Catherine Shelley. John Burford has 24 dollars in the Emigrants’ Industrial Savings Bank, Chambers street, Hew York. John Burford. Witnesses. Thomas Lewis. Catherine Shelley. This instrument, it appears, was executed under the following circumstances. Burford was sick with the cholera, and sent for Mr. Lewis. On his arrival, Mr. Lewis, in the presence of Catherine Shelley, asked the decedent “ what he was going to do with his money ?” He said “ he would leave two hundred and thirty dollars to Sarah Burford, his sister.” Mr. Lewis repaired to an adjoining room, and drew up the [83] paper in question, read it to Catherine Shelley, and when, they both had signed it as witnesses, took it back into the decedent’s room and read the paper aloud to him. Mr. Lewis says: “ I read the paper to him. I told him I had signed his name, and he said he could write his own name. The name, as I had written it, was erased, and he wrote his own name himself.” . . . “ When I read it over to him, I read the names of the witnesses signed to it.”.....“ He had expressed more than once to me that he should leave his property to Sarah Burford.” It thus appears that the instrument conforms to the intention of the decedent, as previously expressed, and as stated at the time in the presence of the witnesses, that it was read aloud to him in the presence of the witnesses and signed by him in their presence. The names of the witnesses were read in connection with the other portion of the paper, and he must have seen them when he signed it. These circumstances seem to me to satisfy the statute in spirit and substance. The witnesses may be said to have signed at the decedent’s request, when their names having been read over to him and seen by him, he set his own signature to the document. The reading aloud before he signed, followed by the act of signature, constituted a testamentary declaration. It was openly declared what the contents were, and it is impossible to read the paper without observing its testamentary character. The entire transaction was public and open from beginning to end, every person present knew what was going on, and that all present were likewise cognizant. This satisfies the law, which looks to substance and not to form. Mere form, indeed, is not nearly so satisfactory, for it gives us only a technical proof that the testator declared the instrument to be liis will, and requested the witnesses to attest it; whereas we have in the evidence before us, the most unequivocal testimony that the attestation was with his consent and full approbation, and that the nature of the transaction was well understood by every body present. The intention of the decedent was most clear; that he desired to carry it out, was manifested by the act of signing after the [84] reading of the paper, by which act he ratified and confirmed all that had been done, making, as it were, the acts of others, so far as his request was necessary, receive an ex post facto confirmation. The particular order of the several requisites to the valid execution of a testament is not at all material, provided they are done at the same time, that is, as part of the same transaction. What is the same time and the same transaction, is the subject of judicial determination in each particular case, depending upon the facts, and incapable of being governed by any general rule. In the present case, there was no time intervening between any of the ceremonies ; the act was entire and one; the parts were strictly consecutive ; their order, which came first and which came last, is entirely unimportant. There being no deficiency in the proof, the will must be admitted to probate, unless there be something in the objection that the deceased did not design the instrument to be his will. Whether a paper is a will or not depends upon its provisions; if they are testamentary in their character, and look to dispositions contingent on death, they determine the nature of the act to be testamentary. The writing now before me, in terms “ bequeaths” money after the testator’s “ death.” Ho words could be employed evincing more definitely the animus testcmdi. It is impossible to hear them read, without knowing they signify a testamentary act. The paper drawn by the witness Lewis, was not a mere note or memorandum of a conversation, but was descriptive of a present act. The testator says, “ I bequeath,” and signs the document. Had he declared it formally to be his last will and testament, the technical proof would have been more perfect, but the interpretation of the instrument would not have been aided. That depends on the writing, and if a bequest after death is not of the very essence of a will, and does not determine a writing to be a will, it is difficult to say what does. I think, upon the whole, the proponents have established their case, and there must be sentence of due proof. Ho executor being named, administration with the will annexed may pass to the next of kin, if it be not claimed by the legatee, after citation.