In re the Probate of the Last Will & Testament of Luthgen , 61 Misc. 544 ( 1908 )

Ketcham, S.

The contestants move at the close of the pro- ' ponent’s case that probate be denied, claiming that the testirnony of the subscribing witnesses fails to show either publication of the will or a request by the testator that the witnesses sign as such. The instrument was written in German, and its translation is as follows:

“ I, the undersigned, Karl Luthgen, bom in Lubeck, ¡November 91,182'T, inmate of the Marien-Heim, Brooklyn, since February 1st, 1902, declare herewith in the presence of the two undersigned witnesses, Mrs. Einile Zerboni, Matron of the Home, Heinrich Meyer, inmate of the Home, that after my death the Marien-Heim shall inherit whatever estate I leave.

“ I authorize herewith Mrs. Emilie Zerboni to take possession of it.

“ Given in the Marien-Heim of Brooklyn, the 12th of August, One thousand nine hundred and seven.

“ Charles Luthgen.

“ Emilie Zerboni,

“ Heinrich Meyer."

Upon a reading of the stenographer’s minutes, some testimony does appear tending to show a declaration by the testator. He and the witnesses each entered upon the ceremony of execution with the knowledge that the transaction was testamentary and with the knowledge that the others knew the nature of the act.

The will was read to the testator in the presence of both witnesses ; and he said when he signed it that “ it was all right that “ he was satisfied and pleased with it.” One witness swears that the testator said that the paper was his will before he signed it. The other swears that, when she and her fellow witness entered the room on the occasion when the instrument was signed, she told Mr. Luthgen that the will was ready and asked him if he was ready to sign it, and he said “ Yes.” Immediately after the will was made, and before the parties to its attestation separated the testator said that it was his will and testament.

While, therefore, it cannot be found that there was any word of publication or declaration at the moment of the testator’s-subscription, the acts and conversation which preceded and followed the testamentary ceremony together justify a finding that there was a declaration at the time of the subscription.

The fact of a request would substantially appear from the same evidence, eked out by the further fact that the witnesses, did sign the instrument immediately after the testator signed it. But the request better appears from a circumstance peculiar to this will. When the testator signed the paper, his act was declared to be done “ in the presence of the two subscribing witnesses.” The will containing the words last quoted had just been read aloud. This act and declaration, made in the presence of those who forthwith became the “ two undersigned witnesses,” to whom his written declaration referred, must be regarded as a request that they should fulfill the intention which he had confessed by the reading of the instrument and his signature thereto. The request does not less clearly appear than it would if he had orally said: “ I am signing this instrument in the presence of these witnesses, and they are about to sign as witnesses as soon as I have signed.”

The motion is denied, and the trial may be resumed upon two days’ notice.

Motion denied.