Barry v. Boyle

Barnard, P. J.

The evidence fails to convince me that the paper proposed for probate is the last will and testament of the deceased Mrs. Boyle. As to the formal execution of the paper, there is conflicting-testimony . Two witnesses, Wm. H. Barry and Jones Lovin, testify that they saw it executed by deceased. Mrs. Barry testifies that she saw it signed by deceased. The witnesses, Thomas E. Boyle and Bridget McClosky, testify to facts showing it impossible that deceased could have signed the will at the time it is alleged to have been signed. One expert testifies that the signature of deceased to alleged will is genuine. Two testify that it»is not genuine. There is evidence tending to corroborate both proponent and contestant.

The surrogate is left in doubt as to the signature, and .rejects the will. I concur with him upon this ground, and also upon the ground that, assuming the formal execution of the will, it ought not to be proved as a will of the deceased. It was not read to her. It was not read by her. She said she would read it afterward, and 'handed it back to Barry. She was a very sick person.at the time-of the alleged signing, and died in five or six days thereafter. Wm. H. Barry drew the will, and his wife gets under it a contingent interest in the entire estate. The will is taken by Wm. H. Barry immediately upon its execution, and secreted in a bureau drawer, where it remains from Wednesday night to Friday, when it is taken away by Mrs. Barry, and kept until after the death of Mrs. Boyle. Deceased could not have read the will after its execution. Ho written instructions were given as to the manner this will was to be drawn by deceased to Barry.

It was to be like another will which he had drawn for her, he says, except the power of sale was to be left out and an executor changed.

Ho one has seen this former will except Barry. He was told “she,” deceased, “had burned it up.” Who told him? Who witnessed this first will besides Barry ? The copy of the first will, which was of vital importance, is not produced by Barry until over five months after he had been examined as to the execution of the proposed will.

The draft of the first will is drawn by Barry. Where is the executed copy ? It was not destroyed at the execution of the will in question. It is very unlikely that a woman, sick as deceased was, destroyed it after the alleged execution of the proposed will. The will is an unnatural one, in that the children of deceased children, if any, should be born before their parents should be twenty-one years of age, are unprovided for, if such parents die before arriving at age.

Upon the whole facts of the case, I think the decree of the surrogate should be affirmed with costs.

Decree affirmed.