Weir v. Fitzgerald

The Surrogate.

The decedent at the time of his death was 76 years of age. His wife died in 1847, and he had no kin nearer than nephews and nieces. The will propounded for proof, bears date April 28, 1848, and was prepared in a measure from a previous will, executed some three or four years before. It does not appear what the alterations were, though it is not unlikely that the decease of his wife may have occasioned some change in his testamentary intentions. Both these instruments were drawn under instructions, given by the decedent personally to the counsel who prepared them. The probate is contested on the grounds of incapacity, undue influence, and non-compliance with the statutory ceremonials requisite to the valid execution of a will.

Total incapacity is not alleged, but it is urged that his mind and memory were so impaired as to make him the subject of undue influence. In judging of his mental condition, it is important to bear in remembrance, that his hearing was slightly affected, and his eyesight very seriously impaired. But two witnesses express an unfavorable opinion of Iris competency. Mr. McCord, who knew him for eight or ten years, and for two years succeeding May 1, 1848, was in the habit of seeing and conversing with him several times a week, from his intercourse with him during the latter period says, “ I should think he was not capable of attending to business. I should not think he had sufficient intellect to make'a contract.” “ I should judge his memory was very treacherous. He seldom if ever could recognize my voice, though I was in the habit of going in there so often. I generally had to tell him who I was before we commenced conversation.” “ I could not say I cordd consider him capable of making a will. I should say if he had bequeathed his property one day, he could not say the next day how he had distributed it. He might come near to it—he might recollect perhaps the principal bequests he had made, but not accurately. I think it would require a good deal of teaching and instructing, in order for him to make a proper will. I do not think he would know how to estimate the value of his property. I think his mind in 1848, was as feeble as it ever has been. I think he could understand as to his family, and the relations the different members of it bore to him.” The witness also expresses the opinion that the decedent had not sufficient capacity to rent his houses, or know the value of rents and of property; and that this arose not so much from want of information as from want of a retentive memory ; that his memory was stronger as to matters of remote than as to those of recent date; and he particularizes an instance in 1848 or 1849, in regard to a lawsuit, when his loss of memory indicated itself in a repetition of inquiries at different times, relative to information previously given which he seemed to have forgotten. On cross-examination, Mr. McCord states that although the decedent was indisposed to start subjects of conversation, he talked “ understandingly ” and “ very well ” on “ usual topics.” He also adds, “ His mind was not all gone; he did not talk incoherently; he talked like a man of sound mind; he seemed deficient in memory and recognition; I could not say there was any other trait or faculty of mind in which he seemed deficient. I do not think the defect or loss of memory was total. He could recognize a person after being told who the person was, who was present. He did not, that I am aware of, forget the names of his near relatives ; but he would forget the names of distant relatives, and ask the names. On one or two occasions, he would ask the names of his niece’s children, Eliza Acker.” “ He was reputed to be worth about $50,000. I think he would generally have his own way, except that in business matters, he would always refer me, and others so far as I knew, to Mr. Weir.” “I don’t know any fact indicating any control of Mr. Weir over the mind of the decedent.”

Mr. Rynex, who was acquainted with the decedent ten or twelve years, and visited him occasionally at his house, about the commencement of the year 1848, some two or three times a week, says, “ I considered his mind as rather imbecile, indeed, quite so. I judged he had suffered very much with his eyes, and he was very hard of hearing; and I considered his suffering from these difficulties had enfeebled his mind.” “I did not think him competent to make a will in 1848.” “I talked with decedent quite often on various subjects of conversation. He would reply to me very well. He often asked me to tell him the same thing over again; and I would do so again and again, till I could get him to understand what I said. I suppose he understood, for he gave assent to it. I never talked to him on business, or had business transactions with him. I thought him incompetent to make a will, in consequence of the complaints he made about his extreme suffering, and the difficulty I had to make him understand very simple accounts I gave him of passing events.” “ I cannot say what the cause was of the difficulty I had to make him understand ; I judged it was from his mind being affected by his sufferings.”

This is the burden of the evidence tending to impeach the capacity of the deceased; and, under the established rules applicable to the subject, it is obviously insufficient to sustain absolute testamentary incompetency. There was nothing like a total deprivation or loss of reason or memory. Whatever doubts this testimony may have suggested must, however, be removed by the evidence not only of the witnesses produced by the executor, but of many who were examined on the part of the contestants.

Miss Gross, a witness for the contestants, who resided in the upper part of the house where Mr. Brinckley lived since 1820, says upon direct examination, “ I think as he grew old, his mind became somewhat enfeebled. I don’t know but I noticed a failure in his memory; I don’t know in what particular, hut I think in some instances I have noticed it.” On cross-examination, she states: “ I don’t recollect any^ instances now of the failure of his memory, but I have at the time noticed some, I suppose in the course of the last three years, or perhaps later” “I was in the habit, two or three years ago, of conversing with him; we would talk about different things; he would answer and talk as though he understood. I think his mind was pretty good, but I think his mind and his hearing failed with his age; I cannot say to a greater extent than is usual.” “ He forgot I paid rent to him, once, about a year ago.” “ Three years ago this spring, in 1848, 1should think his mind was sound, allowing, of course, for his age ; I don’t know but what Ms memory was then pretty good; I don’t know that I had up to that time observed any failure in his nvind, very particular.”

Mr. Gross, a witness for the contestants, who knew the decedent for thirty years, and was intimate with him, says his mind “ Was about as that of a man of his age should be with his infirmities. I cannot say that I ewer observed any signs of imbecility or of a decayed or impaired intellect.” “ I can’t say that he was a man likely to be injkir enced by those who dealt with him.”

Mr. Christophe, a witness for the contestants, an old acquaintance, who saw him occasionally in 1848, says, “ I can’t say I ewer noticed any defeat in his memory. Sometimes he could recognize me by my voice, at others he would not; I observed he was a little hard of hearing; I frequently had to repeat a thing over to him several times; I should think he was capable of making a will; he had pretty fair abilities ; when he was left to himself, I think he could make a pretty fair kind of a will; I thought he might be easily influenced; he did not seem to have much mind of his own lately, I thought; James Weir did his business.” “ I did not observe any change in him, much, myself, lately; but I had not much intercourse with him latterly. The last time I saw him, was less than two or three months before his death. He talked then very reasonably.”

Mr. Peixotto, a witness for the contestants and a clerk in James Weir’s store, states that the decedent was in the habit of calling there every fair day, when he was well, except in the summer season. He says: “ I should thmh decedent had afai/r memory, I should judge so from his conversation ; I would read the paper to him and often heard him tell of things that had happened—frequently he would spin yams and relate incidents of previous life.” He “ appeared to understand me as I read the newspaper to him; he paid attention; I took pleasure in reading to him; he seemed always pleased, I judged so from his conversation; he conversed upon the subjects I read about, as if he understood them; the state of his mind, as to soundness, was fair.” “ I should judge he had capacity enough to understand a contract at the time it was made; I would not say he would remember it five years after; but at the time it was made I should judge he had sufficient mind to understand everything that was said about it.” “ I do not think his memory was so impaired that he would forget in a day or two ; he might in a longer time ; if it was anything important, I think he could recollect it a good while. I do not think he ever requested any transaction to be restated ; I would sometimes read part of an article to him one day, and part the next; I would say, ‘ You remefilber what I said yesterday ?’ and he would answer ‘Yes,’ and .then I would go on.”

Dr. Ogden, a witness for the proponent and an old acquaintance of the decedent, states that he saw and conversed with him at James Weir’s house two years since, on the occasion of Weir’s sickness. He says, “He appeared to have Ms faculties, so far as I saw ; there was no indication of any derangement or imbecility-—not more than in persons generally of Ms age.” The doctor mentioned some peculiarities, and adds, “ When I saw him at Wier’s, I did not observe in what he said, any indication of- impaired or debilitated mind, but I thought the peculiarities I have spoken of had grown upon him by the effect of age.”

Margaret Gambel, a blind woman, acquainted with the decedent for a long time, and visited by him in late years once or twice a week, states that his memory was excellent, and illustrates her opinion by the fact that he was in the habit of repeating to her passages and entire chapters in the Mew Testament. She speaks in unqualified terms of the soundness of his mind.

Mr. Haviland, who had known him from boyhood, and met and conversed with him frequently in the last four or five years, thinks his mind was as good as that of people at his age, generally.

Mr. Harding, whose step-mother was the wife of the decedent, and who had abundant and excellent opportunities of forming a correct judgment as to his capacity, says, “ I thought Ms mind was very sound and very acute. I dorit think I ever perceived, any failm'e in his mi/nd, or any .weakness or loss of memory”

Mr. Martin, who had known him for more than thirty years, and frequently saw and talked with him, says, a I always took his mind to be firm and strong. It was the same as any other man’s could be. He was in his right mind. That was so while I did the last work for him (in 1850.) I never found any difference. I thought he was very good as to intelligence. He was a man of sound intellect on every subject he conversed about.”

Mr. Betts, who worked for the decedent, states that he gave directions in regard to the work, was inquisitive and attentive, and he saw nothing to excite any question as to his capacity.

Mr. Wheeler knew the decedent intimately for fifty years. He says, “ He was a very retiring, excellent man. I had frequent conversations with him, and always found him rational—in his senses. The chief subject of our conversation was religion.” “ He was as rational a man as any man in this room: that I am positive of. I never observed any weakness of mind, or that his intellect was giving way in the least.”

The force of all this evidence in favor of the capacity of the decedent is, I think, increased, when we reflect upon his physical condition, and his peculiarities of deportment. The loss of distinct vision, very naturally tends to withdraw, as it were, the mind within itself. The necessity of depending entirely upon the memory would, it is true, lead to the preservation of that faculty, but likewise to greater care in precisely understanding what was said to him, an anxiety which might very readily, in connection with some slight defect in his hearing, induce a request to have matters he was desirous of comprehending, repeated to him. The chief avenue to his mind was through a single sense. Dr. Ogden describes him as a man who “ pondered before he spoke”— rather “ still and quiet;” and the general tenor of the evidence indicates that, although intelligent enough in conversation, he was not suggestive in starting topics. I see nothing remarkable in that. It would have been singular if the reverse had been the case. In regard to his hearing, the weight of evidence shows it was very slightly affected, and required, from a person speaking near him, only a clear and distinct voice, perhaps a little above the usual tone. The very witness who gave the most adverse opinion on this point, stating that he “ considered him a very deaf man,” said also, “ He could hear pretty well if you talked to him in the tone of voice I am using on this examination. That is the tone in which I usually conversed with him. I think it is above the ordinary tone.”

He certainly was not totally blind. His vision had become impaired in early life, when engaged in watchmaking, and grew worse with his declining years. But he was in the daily habit of walking the streets—he attended church and visited his friends—all without a guide. The accidents .that happened to him, one of which occasioned his death, prove that he could not do this with impunity; and yet Ms general liaMt establishes a considerable degree of visual faculty. There can be no doubt that he could perceive forms, but probably not to such an extent as to recogmze persons without the aid of the voice. It is the most ordinary thing in the world, for persons whose sight is defective, to have the power of perceiving a form without the faculty of distinguishing persons. It happens constantly, beyond a certain range of vision, with near-sighted persons. Although, as stated by one of the witnesses, the decedent could not distinguish one written instrument from another two feet off, yet he may very well have been able to ercei/oe a written instrument at that distance. Me Cord says, “ I don’t think he could possibly see to distingmsh one letter from another—that is, ordinary writing or printing. He might very large letters, perhaps.” Mr. Peixotto says, “ I should not think the decedent could distingmsh countenances at arm’s-length, any time in 1848.” “ I do not tMnk he could have seen his own signature, if he had signed it.” Mrs. Gross says she does not think that, “ for the last ten years, he could distinguish a person at arm’s-length.” Mr. Martin says, “ He could see, I think, Ms own hand, when he held it up. He could discern a brick, and the joint of bricks, in looking at it with a glass which he carried—a pocket-glass. He could see forms by getting close. He could see gutter-stones, so as to step over and upon the curb.” Mr. Harding says, “ Two years ago, I tMnk, he could distingmsh a form before him.” Margaret Gambel states that, standing by the window of her front room, he observed some flowers by the backroom window.

I am satisfied the decedent was perfectly competent to make a will; but in view of his condition and infirmities, the transaction should be carefully examined for any trace of imposition or artifice. Mr. Weir was Ms agent, and stood in a confidential relation. The will was prepared tMrough the intervention of counsel with whom he was acquainted, and called in by him. This was the natural channel in which the business would be done; but we must look to see if advantage was taken of this circumstance. It seems that the largest portion of the property is given to Weir; still there is no indication of this being inconsistent with the state of the decedent’s affections. Weir, it appears, had been brought up by his uncle, and for several years had been entrusted with the management of his business. Brinckley was in the habit of daily visiting his store, unless prevented by ill health or bad weather, and was interested in him. I cannot say, under all the circumstances, that the provisions of the will are unreasonably partial. The decedent gives to his sister-in-law, Mary Brinckley, an annuity of $180, and to his niece, Mary C. Stevens, an annuity of $120,—which he charges upon one of the houses and lots devised to James Weir. He then gives, in legacies, over sixteen thousand dollars, as follows: To the Missionary Society of the Methodist Episcopal Church, $1,000 ; Robert W. Weir, $2,000 ; John B. Weir, $2,000 ; William H. Weir, $1,000; James Weir, $2,000; Charlotte A. Weir, $3,000; Mary Ann, the wife of James Weir, $1,000 ; William Weir, $1,000 ; Caroline M. Sneeden, $1,000; Adeline O. Sam mis, $1,000; Delia A. Fitzgerald, $1,000; and to seven of the children of his deceased niece, Eliza Acker, $100 each. The residue is given to James Weir, with instructions, after an allowance to him of $350 per annum, as acting executor, to invest it, and apply such part of the income, as the executors should, in their discretion consider necessary, to the relief of the persons named in the will, as they might require assistance by reason of being in necessitous circumstances. Thus, none of the decedent’s kin appear to be forgotten, and the legacies are substantial. There is a large number interested in the provisions, besides James Weir; and the only " parties contesting are Mrs. Sneeden and Mrs. Fitzgerald.

But it is proper to consider the manner in which the will was prepared. Mr. Hopper, who drew it, states that it was drawn, in a measure, from a former will, which he had drawn, and which was handed to him by the decedent. He says, “ The alterations between this will and that will were made at his suggestion. I drew this will pursuant to his instructions.” “ I made some pencil memoranda on the old will, in respect to the alterations the decedent wished to make.” “ As the decedent dictated the alterations he wished, I made a minute of them.” “ He told me what alterations he had made; and in regard to one bequest, he gave me the reasons for it. That was the bequest to James Weir. He said that James had been very kind and attentive to him, for a long time; that he had the charge of his business for a considerable time, and he felt very grateful to him, and that was his reason for making a difference in his favor.” The witness met Mr. Brinckley at Weir’s store, and received his instructions there. After it was drawn, he delivered it to him, together with the old will, at the same place. This was the day before the execution. At that time he read the will to him. He says, “I read it to him two or three times. I recollect, I read it so often, and he was so particular in his inquiries—it got so late—I told him I could not wait to have it executed that afternoon, and would leave it with him. Ho one was present at this conversation; I am very sure no one was present. Whenever I went there about the will, we were always alone; I am confident when conversing about the will, we were alone. I read the whole will to him, in a very slow and distinct manner, going over the passages in a way that he heard me—that is, he appeared to. I read the old will, and then paused where the alterations were made, and showed him the alterations. I did not read the whole of the old will, but only such passages as he wished to have altered. I read the second will over to him the day it was executed, once or twice. I went over some parts of it again. I had as much trouble as I had the day before, in reading it to him, he was so particular. He said he had great difficulty in reading, and he wanted to remember it. There were no particular explanations the second day. I read it very distinctly indeed. It was in a voice loud enough for him to hear. I recollect it was louder than my usual tone. I found I had todo so. He would insist upon my reading very'slowly and distinctly. From his requesting me to read slower, and read over again, I got the impression he did not hear very well, though I did not know he was deaf. He would say to me, ‘ a little louder,’ and £ a little slower.’ I do not remember what was the precise tone of my voice, whether the same as I now use or not.” ,It thus appears there was abundant care and deliberation in the preparation of the will, the ascertainment of the intentions of the decedent, and the explanation and reading of the document when drawn. When the decedent gave the instructions, Mr. Hopper spent an “ hour or two ” with him ; when the will 1 was read the day previous to the execution, some considerable time must have been consumed; and on the day of the execution, over half an hour was occupied in the same way. Mor is there any proof of any interference on the part of Mr. Weir in regard to the provisions of the will. He knew of its execution, and, probably, of the proposed alterations from the former will; but there is nothing in the case from which to infer any direct management or influence exerted to bring about these changes. Kind offices and faithful services, in ordinary course tend to influence the mind in favor of the party thus acting; and care should be taken not to confound the natural action of the human feelings in this respect, with positive dictation and control exercised over the mind of the testator. There is no trace of any such fraud, dictation, or control in this case; and I cannot infer the existence of artifice or undue influence, merely from the favorable bequests to James Weir, especially in view of the emanation of instructions from the deceased, and the proof that the will accorded with his wishes and intentions.

It is contended, however, that the will was not executed in conformity with the directions of the statute. By the Roman law, no person could make a valid will who lacked some of the principal senses—such, for example, as were deaf and dumb, or blind. Blackstone lays this down of those born deaf, dumb, and blind, who, he says, “ as they have always wanted the common inlets of understanding, are incapable of having amrrmm, testandi, and their testaments are therefore void.” (2 Com., 497.) The rule was, of necessity, qualified by the reason of it, which was a presumed want of capacity. Persons born deaf and dumb could not make wills, on the supposition of insufficient capacity : 8urdus, rrmtus, testammtvm faeere non posswnt. (Dig., L. XXVIII, Tit. 1, §§ 6, 7); but subsequently it was allowed where the defects were not congenital, and there existed sufficient testamentary capacity. (Cod., Lib. VI, Tit. 22, § 10.) A blind man might make a nuncupative will, by declaring the same before seven witnesses ; but he could not make a testament in writing, unless it was read to him and acknowledged by him to be his will before the witnesses. (Cod., Lib. VI, Tit. 22, § 8 ; Inst., Lib. II, Tit. XII., § 3, 4; Dig., Lib., XXXVII, Tit. 3.) This was first permitted by a decree of Justin, and continued to be the rule of the civil law. Cce&us, cmtem, non potest faeere testammtvm, nisi per obsermtionem, guam lex divi Justini, patris nostri, vntrodMxit. It has not, however, prevailed in England, nor been incorporated in any of the statutes relative to wills. The object of requiring the will to be read to the blind man was doubtless to prevent fraud, the substitution of one instrument for another, and to secure evidence, beyond the mere faetum of the will, of the knowledge of the contents of the identical will by the testator. It has not been made a formal ceremomaLby our statute, in any case, that the will should be read to the testator in the presence of the witnesses, though it is eminently proper so to do where the testator is blind of cannot read. The statute is satisfied by the subscription of the testator, at the end of the will, in the presence of two witnesses, or the acknowledgment of such subscription; the testamentary declaration of the testator; and the signature by the witnesses, of their names at the end of the will, at the request of the testator. These forms are necessary, but, even when satisfied by the evidence, do not always entitle the will to be admitted to proof. Something more is necessary to establish the validity of the will, in cases where, from the infirmities of the testator, his impaired capacity, or the circumstances attending the transaction, the usual inference cannot be drawn1 from the mere formal execution. Additional evidence is therefore required that the testator’s mind accompanied the will, that he knew what he was executing, and was cognizant of the provisions of the will. I think that is all that ought to be required in the proof of the will of a blind person. But it is not essential it should be established by the subscribing witnesses. It may be supplied almmde. As subscribing witnesses, all that it is necessary they should prove, is that ceremony which they witnessed, and which the statute requires. This satisfies the statute; and the additional evidence to which I have referred as proper in certain cases, may be afforded by other persons. The point presented is not entirely new. In Moore vs. Paine, 2 Cas. temp. Lee, 595, the deceased was blind, and only one of the three subscribing witnesses proved the instructions, the reading of the will to the testatrix, and her approbation of it. The will was sustained, on the ground that only one witness was necessary. In Longchamp vs. Fish, 5 Bos. & Pull, 415, before the Common Pleas, the precise question came up. That was a will of lands, which by statute was required to be executed in the presence of, and subscribed by, three witnesses. The will was not read over in the presence of the three attesting witnesses. The testator was blind, had dictated the will to one Davis, who read it over to him, took it away, got it copied, brought it back, fairly copied; two months after, the testator made an alteration in it; and then it was executed. It was contended that the will ought to have been read in the presence of the testator by one, at least, of the attesting witnesses. The court, however, ruled in favor of the will, Chambre, J. remarking as follows: “ This question must be decided by the provisions of the statute of frauds. Now, it does not appear that the legislature, when they passed that statute, had in their contemplation execution of wills by blind men.” “ There cannot be a doubt, if this were an instrument by deed or any other written engagement, that the mere signature of the party, though blind, would be deemed a sufficient execution, and the only thing to be proved would be, that the blind man was not imposed upon. In this case, that fact is completely established, by an unimpeached witness, who took instructions from the mouth of the blind man himself, and wrote them down.” The same point has been decided in regard to the will of a blind person, made under the provisions of the statute 1 Vict., c. 26, which so nearly conform to those of our own law. In Fincham vs. Edwards, 3 Curteis, 63, the testatrix was blind. The will propounded was prepared by a solicitor from a previous will, the alterations having been made in pencil, and the instructions not being produced. The solicitor read over the former will to the testatrix, took her instructions, and drafted the will; but when the will was executed it was not read over to the testatrix in the presence of either of the subscribing witnesses. Sir Herbert Jenner Fust admitted the will to proof, saying, “Certainly, when the court is asked to grant probate of a will of a party totally or almost blind, it must be shewn to the satisfaction of the court, that the contents of the will are conformable to the instructions and intentions of the deceased. "Undoubtedly, in this case, the will is not proved to have been read over to the deceased. A reference has been made to Mr. Williams’ Treatise; but the case of Barton vs. Robins (3 Phill., 455, note), shews that it is not necessary that the actual will should be read over, if there is proof that the party deceased knew the contents of it.”. This decision was affirmed, on appeal, by the Judicial Committee of the Privy Council.

The only remaining objection to the probate, is defective execution, on the ground that one of the witnesses, Mr. Albro, does not prove the requisite ceremonials. The answer to this is, that it is not essential they should be proved by both witnesses. The question is, were they performed ? Mr. Hopper proves, in a very clear and distinct manner, that they were. If he were directly contradicted by the other witness, the question would be different. But I do not understand Mr. Albro as explicitly denying any material statement of Mr. Hopper. The latter was attending to a professional duty, and would naturally give his attention to such features of the transaction as he knew to be essential. The former was a stranger, called in suddenly, and remaining just long enough to witness the execution. When he went in, he says, he thinks Mr. Hopper said, “ ‘ Mr. Brinckley is about making his will.’ My impression had been, from his manner of walking, that he was rather deaf, and his eye-sight was bad. I noticed that the decedent did not appear at that time to hear very well, for as I walked in, he did not appear to notice me, or look up; but after his attention was called, or something was said, he loohed up. The will was before him on the table. He sat close to it; he sat up straight, with his hands crossed. I can’t say I saw the decedent sign it. I saw him in such a position that I supposed he signed it. He sat close to the table, the will was before him. I don’t recollect whether he had or had not a pen. I don’t think I could recollect. I think he had an elbow on the table after a while. I don’t recollect that anything was read while I was in there. ' I stayed but a few minutes. I could not recollect whether the attestation clause was read while I was there. I think Mr. Hopper drew the will towards him, signed his name, and then handed it to me, and I signed my name; and then he said to the decedent, ‘ Do you acknowledge this to be your last will and testament V He rose up and looked towards him. The decedent gave a kind of look up, and assented by nodding his head. I don’t recollect whether his lips moved or not. I saw him nod his head. The question put to the decedent was' said perfect and distinct, so that if a person was not very deaf he would hear him. I don’t recollect that he asked him any other question; but I went in sueh a hwrry, and was so thoughtless, that I don’t recollect that he said anything, or that I heard him speak; if he did, it must have been pretty low. As quick as I heard Mr. Hopper ask the decedent if he acknowledged it to be his will, and he assented, I went right out, and left them there in the back room. I think the subscription of the name of the decedent was at the end of the will when I signed. I just looked over the will, to see it was a will, and what it was I was signing, and then signed my name.” Again, “ I think something was said by Mr. Hopper about its being necessary to have witnesses, or something like that.” “ He said, 6 Mr. Albro will witness it,’ or something like that. In a minute or two he looked up, after that, and I was thinking whether or no he heard. He was sitting upright. I did not see him sign it. My impression was he signed it, but I might be mistaken. If he had not, I should have thought it something singular, and should have charged my mind with it.” “ I was not asked by Mr. Brinckley to witness the will, but I think something was said whether I should not witness it; but I. won’t be sure.”

On the other hand, Mr. Hopper distinctly states that he told the decedent “ it was necessary to have two witnesses.” He consulted Mr. Weir as to whom he should send for, and then sent for Mr. Albro. “ When Mr. Albro came into the store where Mr. Brinckley was, I told him Mr. Brinckley was about to execute his will, the law required two witnesses to the will, that I would act as one of the witnesses, and he was wanted to act as the other. Mr. Brinckley was present, and perfectly understood me—that is, he appeared to.” The witness then proves the signature of the- will by the testator, in the presence of both witnesses, his testamentary declaration, the request to the witnesses, and their signature. Again he says, “ I said to the decedenty-Mr. Albro, a neighbor, is here, and ready to witness the will. The decedent said he was - ready, asked for a pen; I handed it to him; he wrote his name.” Again, “ He signed it, handed it to me, and I asked him if we should proceed to witness it; he said, Tes. I said, Mr. Brinckley, do you declare this to he your last will and testament you have just signed ? He answered, I do. I said, Do you desire Mr. Albro, the gentleman now present, and myself, to witness your signing and declaration ? He said, I do. After Mr. Albro came in, and after the decedent had signed the will, I told him there was a little ceremony to go through, and that I would read to him the attestation clause. I read to him the attestation clause, and told him that now Mr. Albro and myself would sign our names, if he desired it. He said he did, he wanted us to do so ; and we thereupon did sign it.”

This proof, I think, is clearly sufficient, and is not overcome by the want of recollection on the part of the other witness. In England, in regard to a will executed under the provisions of the statute 1 Victoria, c. 26, it has been decided that positive affirmative evidence by the subscribing witnesses, of the fact of signing or acknowledging the signature of a testator, in their presence, is not absolutely essential to the validity of a will; and that the court may presume due execution by a testator, upon the circumstances. (Blake vs. Knight, 3 Curteis, 547.) This is accordant with the current of decisions under our own statute, and the rule is marked by good sense and conformity to the established principles of evidence. Thus, in Remsen vs. Brinkerhoff, 26 Wend., 332, it was admitted that where the facts essential to the valid execution of the will are stated in the attestation clause, the mere want of recollection of the witness is insufficient to overthrow the presumption of due execution. In other cases it has been repeatedly decided that where one of the subscribing witnesses swears that all the formalities required by the statute were complied with, the will may be admitted to probate, notwithstanding the other attesting witness may not be able to recollect the fact; and that the attestation clause, after the lapse of time, and on a want of recollection by the witnesses, affords a presumption or inference that its recitals are true. (Chaffee vs. The Baptist Miss. Con., 10 Paige, 85; Jauncey vs. Thorne, 2 Bar Ch. R., 40; Nelson vs. Mc Giffert, 3 Bar. Ch. R., 158; See 19 J. R., 386; 4 Cowen, 483; 1 Wend., 406; 11 Wend., 599.) I am satisfied, therefore, that the execution of the will is duly proved in all formal respects; and it having been satisfactorily shown that the will was prepared under instructions given by the testator personally, I see no reason, in the absence of any evidence affirmatively establishing fraud, influence, restraint, or imposition, why it should not be admitted to probate.