Citation Numbers: 129 Misc. 361
Judges: Pelletreau
Filed Date: 4/14/1927
Status: Precedential
Modified Date: 2/5/2022
Objections were filed against admitting the paper presented for probate as the last will of the above deceased. The principal issue raised upon the proof is upon the question, Was the alleged will duly executed by her?
The requirements of the law so far as they relate to this will were that it should be signed by the deceased at the end of the will and in the presence of two witnesses; at the time of signing the deceased should declare to each of the witnesses that the paper was her last
Again if the person present as a witness, having heard the declaration or received the declaration, and should say to the testatrix, “ Shall I sign it? ” and the testatrix nods her head or by any means expresses her desire that it should be signed by the witnesses, in that respect the law has been fulfilled.
There is no legal requirement that there be added to the will what the lawyers call an “ attestation clause.” It is the invention of good practitioners. It is a valuable, desirable and excellent thing but it has no ritualistic value. There was such a clause at the end of the paper presented as the will of Catharine Conway. The will is legal in form.
There is legal proof in this case that Catharine Conway signed the paper; that the two witnesses saw her sign and that they thereupon signed their names thereto in her presence and in the presence of each other. Each witness positively swears that he was asked by a brother of the proponent to go to the residence of the decedent to witness the signing of her will; that two or three days thereafter they were driven to the house of the deceased by the same party. The two witnesses sat in the kitchen and Mr. Thomas Butler, the brother of the proponent, went into the dining room and soon after the two witnesses were called in. Thus then in the dining room there were Miss Catharine Ducey, the proponent, Mr. Thomas Butler, her brother, and the two witnesses to the will, James L. Horton and Edward Butler; the document now presented for probate was on the table. The decedent, Catharine Conway, was not in the room but in an adjoining room. Miss Catharine Ducey, the proponent, then called her in the room. Thereupon Miss Catharine Ducey said to the decedent in effect: “ Sign this paper here,” and pointedl font where the decedent was