In re the Contested Will of Baumann

Schulz, S. The testatrix left her surviving, two sisters and a brother as heirs-at-law and next of kin, and by her will, after leaving a legacy of $2,000 to her niece and a legacy of $100 to her brother, the contestant, she left all the rest,1 residue and remainder of her estate to her two sisters. The brother [89] contests the will, and the answer sets up a number of objections. The contestant lays stress upon two of them, one being the alleged incompetency of the testatrix at the time of the execution of the will, and the other being an alleged omission in the execution of the will, arising out of the fact that the attorney who attended upon the execution held the hand of the testatrix with which the subscription to the document was made. The testatrix was an invalid at the time of the making of the will and, as the evidence indicates, suffered from loco-motor ataxia for a great many years, but after a careful consideration of the testimony, I fail to discover evidence sufficient to justify a finding by me that she was not competent to make the will at the time it was made. I am satisfied that she was fully competent to make the will so far as her mental condition was concerned. This leaves but one question to be considered, namely, were the statutory requirements fulfilled? Section 21 of the Decedent Estate Law, being Laws of 1909, chapter 18, constituting chapter 13 of the Consolidated Laws, prescribes the four steps which must be taken to legally execute and attest a last will and testament. Of these four steps, three were fully complied with; the only question that could possibly arise is whether the subscription to the document was a subscription made by the testatrix. It is well settled that the time when the testatrix declares the document to be her will in relation to the time when she signs the same is of no importance, so that whether the testatrix declared this instrument to be her last will and testament just before she signed it or while she was in the act of signing it or immediately after she signed it, is of no moment if as a matter of fact she did sign it and the signing, declaration and attestation of the witnesses were all a, part of one testamentary act and consummated at one time. Doe v. Roe, 2 Barb. 200; Lewis v. Lewis, 13 id. 17; Keeney v. Whitmarsh, 16 id. 141; Jackson v. Jackson, 39 N. Y. 153. I [90] am also of £he opinion that the subscription made as shown by the evidence was a subscription by the testatrix. The law upon the question as to how far assistance may be rendered to a person unable to perform the physical act of signing his name has been well stated in Matter of Kearney, 69 App. Div. 481. The court in that case said, at pages, 483, 484: “ If a testator is physically unable to. sign his name, but requires assistance, he may call in another to his aid, even to the holding of his hand and guiding it. The extent of that aid, so long as it is assistance, does not make the signature invalid, if the signing was in any degree an act of the testator, acquiesced in and adopted by him. * * * The question whether the signature is the act of the testator does not turn upon the extent of the aid, but whether the aid was assistance or control. * * * The testator’s mental conception that he desired to sign the will may have been entirely clear, and yet his relative physical power, compared with that of the assistant, may have been almost nil. His mind may have willed the physical action of signing, and yet his hand may almost have refused to obey his mind, so that when his hand was taken in the hand of a man in good health it may have been almost passive or have yielded almost absolutely to the superior force so as to have lost the power to make its own peculiar letters; yet, so long as there was the conscious wish of the testator that his hand should make the signature, and he participated in any degree in the making of it and acquiesced in and adopted the signature thus made, it was sufficient.” With the above statement of the law, I am in accord. The contestant lays some stress upon the fact that there is nothing in the evidence which shows that the testatrix acknowledged the signature to be hers, but I do not deem this of importance because the subscription was actually made in the presence of the witnesses, and if it was a subscription by the testatrix made in the presence of the witnesses, as I have found, even [91] though made with the assistance of some one else, an acknowledgment was unnecessary. Upon the whole testimony, I find that the will was executed in accordance with the statute by a person competent to make the same, and it will accordingly be admitted to probate. Costs to the proponent payable out of the estate. Settle findings and decrees on two days’ notice. Decreed accordingly.