
    In the Matter of the Revocation of the Last Will and Testament of Ann Voorhis, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    Will—Execution—Publication.
    A substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient. , Where one of the witnesses testified that either the deceased or the counsel said, when he signed the instrument, that it was the will of the deceased, and the other witness testified that before he signed the paper the counsel asked the deceased “if she wished these gentlemen to witness her will and she said yes,” and the counsel, corroborated them, it is sufficient proof to sustain the finding of the surrogate that the will was published.
    Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate denying motion to vacate and annul the probate of a will and confirming the probate thereof.
    
      Wm. B. Hornblower, for app’lt; Edward T. Bartlett, for resp’t
    
      
       Affirming 27 N. Y. State Rep., 368.
    
   O’Brien, J.

Ann Voorhis died in the city of New York January 30, 1882, leaving a last will dated October 20, 1879, and with■out children, parents, brother or sister. Her nearest relatives were nephews and nieces and children of deceased nephews and nieces. The will was, after a contest, admitted to probate November 9, 1885, and about a year thereafter one of the nieces petitioned the surrogate for revocation of probate. This application resulted in another trial and in a decree of the surrogate sustaining the will and probate, which the general term has affirmed.

The objections to the will are want of capacity of the testator to make it; ignorance in part of its provisions when she executed it, .and failure to comply with the provisions of the statute as to its execution.

It does not appear that the will was read to the testatrix at the time of execution, or that she read it herself ; but it does appear that she called' upon the counsel who drew it at his office, communicated to him the disposition which she wished to make ■of her property, and that he drafted the will according to her directions and read the draft to her at her house, subsequently, and made corrections and changes at her suggestion and "that the will in question is a copy of the paper then used and corrected. With respect to the competency of the testatrix, the evidence .shows that she was a woman of very little, if any education, quite ignorant, penurious, excitable and changeful; but we think there was no reason to believe that she was not fully capable of making a will. ^ She certainly understood the nature and effect of the •transaction, had knowledge of the property she was about to dispose of and recollection of the personshaving a natural claim upon .ber bounty. The most favorable view that can be taken of the case for the contestants is, that upon the question of capacity the testimony was conflicting. The surrogate has found, however, upon this evidence, that she was of sound mind and memory and capable of making a will, and as the general term was of the same opinion we have no right to review the facts. Hewlett v. Elmerr 103 N. Y., 156; 3 N. Y. State Rep., 1; In re Valentine, 100 N. Y., 607; In re Yates, 99 id., 94; In re Darrow, 95 id., 668; In re Cottrell, id., 329; Davis v. Clark, 87 id., 623; In re Higgins, 94 id., 554; In re Ross, 87 id., 514; Marx v. McGlynn, 88 id., 357.

There seems to be no doubt that the deceased intended to make another will. In the early part of the year 1882, one was drawn for her, at her request, to execute, the provisions of which are much more complicated and difficult to understand than that now under consideration. The last paper was more favorable to the relatives, as the bequest to the Bible Society and the Home • Missionary Society of the bulk of the estate were wholly omitted. The contestants were aware of its provisions and it did not seem to occur to any of them then that the deceased was incapable of making a will. It, however, was never executed for the reason that the deceased was taken suddenly ill and became unconscious and remained in that condition until her death. Had it been executed before her illness there is every reason to believe that it would have been perfectly valid, and certainly a more satisfactory disposition of her property, so far as her relatives were concerned, and possibly, on the whole, more equitable and just. But it is enough for us to know that, upon the findings of the surrogate, supported by the evidence, she was capable of making the will in question, and when made it expressed her wishes as to the disposition of her property, and that it never was legally revoked.

The deceased signed the will at her house in the presence of the two subscribing witnesses who attended there in compliance with her request and also in the presence of the counsel who drew it and was present by appointment. í'hese three persons testify that they saw the deceased sign the paper without any aid or assistance. The two subscribing witnesses then in her presence and in the presence of each other signed their names as such, and the only question that arises in regard to the proper execution of the instrument is respecting the formality of publication. On that point the fact must be kept in .view that the deceased not only requested the attendance of the witnesses at the execution of the instrument but also the experienced counsel who drew it, in order that every formality necessary to the valid execution of the instrument should be complied with. It is extremely unlikely under these circumstances that such an important requirement of the statute was omitted. The surrogate has found as a fact that the deceased duly published and declared the instrument to be her will in the presence of the two witnesses and the attestation clause recites the publication of the will in the presence of both witnesses. One of the witnesses testified that either the deceased or the counsel said when he signed the instrument that it was the will of the deceased. The other witness testified that before he signed the paper the counsel asked the deceased “if she wished these gentlemen to witness her will, and she said yes;” and the counsel swears that the deceased signed her name to the paper “and the two gentlemen after I Trad asked her if she had signed and sealed this paper .and published and declared it as her last will and testament and requested these gentlemen to execute it as witnesses, and they then signed it as witnesses.” This proof was sufficient to sustain the finding of the surrogate that the will was published. A substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient, and that was established. Gilbert v. Knox, 52 N. Y., 125; Matter of Will of Cottrell, 95 id., 329; Matter of Higgins, 94 id., 554.

The exceptions taken at the hearing before the surrogate do not present any question of sufficient importance to warrant us in disturbing a result reached only after much litigation. We are of the opinion that they were correctly disposed of in the courts below.

The judgment should be affirmed.

All concur.  