
    In the Matter of Proving the Will of George C. Woolsey, Deceased.
    
      (Surrogate’s Court, Ulster County,
    
    
      Filed July, 1896.)
    1. Will — Publication.
    Where testator signed in the presence of both witnesses and then handed the will to one of them with a,-a-,eques± that he read the attestation clause and- sign,, there is a sufficient publication and request to-both 'witnesses, although no direct declaration and request was made to the other.
    2. TESTAMENTARY CAPACITY-DRUNKENNESS.
    To show such a condition arising from drinking intoxicating liquors as will avoid a will, it must be proved that decedent was intoxicated, or that his understanding was clouded or his reason dethroned by actual intoxication at the exact time the will was executed.
    Probate of will.
    C. Meecb Woolsey, in person (Eldoras Dayton, of counsel), for proponent; Brinnier & Newcomb and John F. Cloonan, for Anna C. Woolsey, a niece; A. D- Lent, for William H. Woolsey, a nephew of deceased.
   Betts, S.

George C. Woolsey died in this city on the 15th day of April, 1896, having, on April 11th, executed a paper writing which is offered here for probate as his last will and testament, by which he left all his property to his brother, 0. Meech Woolsey, and made him the executor thereof.

Objections were filed by a niece and nephew thereto, and a great deal of evidence has been taken.

The evidence for the contestants has been directed toward three points:

First. That the will was not properly' executed • in' accordance with the statute. ’ '

Second.’ That the’ testator, was' dr,u;nk,.atfthe,tim&-of its‘execution.

Third’. That he was incompetent to make a will by reason of the effects upon him of drink, illness and of his general ineom-petency.

I will briefly consider these points, and the conclusion that I have come to in regard to them.

As to the first point, it is claimed that the testator did not declare the instrument in question to be his last will and testament, and did not request the witnesses to subscribe their names thereto as such.

The evidence is, that on the day oh which this paper was executed, the -deceased 'gáve to Edwin D. Brandow, a lawyer of this city, a brief memorandum,- and requested him to draw his will therefrbiri,rahd.'to se‘eto'“it to-day. This was about 2.o’clock in the afternoon. Brandow took the paper to his office, drew the will upon a form and returned to Woolsey’s house at about 7 or 8 o’clock in the evening. On his way there Brandow met Erancis H. Griffith, a neighbor of Mr. Woolsey, and the two> went in together. Mr. Brandow gave Woolsey the paper, which he read. Woolsey then signed the paper in the presence of both of the witnesses, and handed it to Griffith with a request, as Griffith says, that he read tire attestation clause and sign it, or verify it. The attestation clause is very full and is as follows: “ We, whose names are hereto subscribed, do certify that George 0. Woolsey, the testator, subscribed his name to this instrument in our presence, and in the presence of each of us, and at the same time he declared 'in our presence and hearing that the same was his last will and testament, and requested us, and each of us, to sign our names, thereto, as witnesses to the execution thereof, and which we hereby do in the presence of the testator and of each other, the day of the date of the said will, and have written opposite our names our respective places of residenee.”

Brandow testified that Woolsey said to Mr. Griffith, Witness my'will” or This is my will.” This is in substance the entire testimony as to the declaration of deceased.

It is evident that Brandow knew that this was a will, because .be bad drawn it, and gone there for the express purpose of hawing it executed. It is also evident that Griffith knew it was a • will, because he, at the request of the deceased, read- the attestation clause.

The statute is, “such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknoAvledged by him to have been so made to each of the attesting witnesses, the testator at the time of making such subscidption or at the time of acknowledging the same shall declare the instrument so subscribed to be his last will and testament.”

It is held (Gilbert v. Knox, 52 N. Y. 125), that “ the object of this..provision is to .sefeure the testator against fraud and imposition, and the knowledge that the instrument which the witnesses axe called upon to attest is a will must be communicated to them by the testator at the time of his subscription or acknowledgment, and knowledge derived from any other source or at any other time of tire same fact cannot stand as a substitute for the declaration of the testator. But the fact that the testator was fully apprised of the testamentary character of the instrument may be considered in aid of proof tending to establish 'a publication.”

It is held in Lane v. Lane, 95 N. Y. 494, that no particular form of words is required or neeesssary to effect publication, and in Matter of Hunt, 110 N. Y. 278, that a substantial compliance with the requirements of the statute as to execution and at- ' testation is sufficient.

From the testimony in this case, and under the above decisions, I hold the testator to have sufficiently declared this to be his last will and testament.

As to the request for the witnesses to sign by the testator, the statute is as follows: “ There shall be at least two attesting witnesses who shall sign their names as witnesses at the end of the will at the request of the testator.” Griffith was requested to sign and requested to read the attestation clause. Brandow .did not testify that the deceased requested him ..to subscribe as a witness, nor was he asked the question. Brandow signed the attestation cla.use which recites that the request by Woolsey was made.

In Hutchings v. Cochrane, 2 Bradf. 295, it was held that a request to sign as witnesses may be implied from the acts of the parties. In that case one of the subscribing witnesses handed the deceased the will, stating that he came “ to witness her sign her will,” and the testatrix, having read it, declared it to be her will, signed it, and both witnesses subscribed their names in her presence.; No direct request-was proved.

In Coffin v. Coffin, 23 N. Y. 9, a .request was made to only one of the witnesses to;sign as a witness, and it was held to be a good attestation, the court holding: “ Now, the statute, it is true, declares each.witness must sign on such request, but the manner and forni in which the request must be made, and the evidence-by which, it must-be proved is not prescribed. We apprehend.it is clear no precise form of words addressed to each of the witnesses at the very time of the attestation is required. Any communication importing such request .addressed, to one of the witnesses in- the-presence of the other and which by a just consideration of all the circumstances is intended for both, is, we think, sufficient.”

In Peck v. Cary, 27 N. Y. 9, it is held that the object of the statute is that an. officious signing by the witnesses without any privity with the testator should not be recognized as sufficient.

In the Will of Nelson, 141 N. Y. 152, the proof was substantially as follows: The will had been drawn and witnessed by:a, partner, of the deceased* and .this partner had predeceased Nelson. The remaining-subscribing witness, the coachman of Nelson, denied that he had ever been requested to sign by Nelson .ass' witness or that Nelson had acquiesced in the request by Baker, the other .subscribing .witness, that he should sign.. . The,will was, however, admitted to.probate. It’wasyhpKf that-both Nelson and his partner Baker, -being lavgg^j?, -well'.knowing what was needed for the d-ue.execution of the will, it was not a reasonable supposition that they-neglected any essential requirement. In. that case the- attestation clause did not contain the usual paragraph that the witnesses signed at the request of the testator. In the Matter of the Will of Cottrell, 95 N. Y. 339, it is held that the attestation clause is always some proof of the due execution of the will.

In this case we have'the request from Woolsey to .Griffith in the presence of Brandow, Brandow being there at the request of Woolsey to have the will executed. Woolsey was a lawyer by profession.

I hold that in the spirit and meaning of the decisions cited, and of the statute, that there was a sufficient request to Brandow for him to sign as a witness.

As to the second point.

Without going into the testimony in detail, the evidence is convincing that the testator was not drunk at the time the will was executed. Both subscribing witnesses say that he was competent to make a will. Henry A. Wolfer, his nephew, and Miss Flannigan, the housekeeper, both testify that he was sober on Saturday. Hesse only says that he was drunk on Saturday. He did not see him within apparently three or four hours from the time the will was executed. Hesse says that he took the deceased three bottles of whiskey on the day the will was executed, the last being about 3 or 4 o’clock. The testimony is that the will was executed between 7 and 8 o’clock, or, perhaps, a little later.

In order to show such .drunkenness, or such condition from drinking intoxicating liquors, as would avoid the will, the contestants must show that the deceased was intoxicated, or that his understanding was clouded or reason dethroned by actual intoxication, at the exact time the will was executed. Peck v. Cary, supra; Matter of Halbert, 15 Misc. Rep. 308; Van Wyck v. Brasher, 81 N. Y. 260.

Now as to the general question of incompeteney of deceased:

The contestants’ witnesses testified to many acts, of the deceased that they considered irrational. Among the most conspicuous are, allowing some or all of his real estate to become incumbered by taxes, and one piece at least to be actually sold. These witnesses also testified that they knew nothing as to the amount of money the ■ deceased had, or whether he was able to meet those taxes or not, but largely predicated their assertions on the assumption that he had the means. The uncontradicted testimony is that he owned a great deal of real estate, all or the most of it being, heavily incumbered by mortgages and taxes. He also had frequent disputes with city officials as to special assessments, and for the actual or alleged violations by himself of city ordinances. On one or more occasions he was arrested for not keeping the snow- properly cleared from the sidewalk in front of some of his real estate. He did not seem to he entirely pleased with .this, and expressed his disapprobation of the officers, the ordinances, and the entire situation, with much more vehemence than discrimination. It-will hardly do for this court to hold that a man who loses his temper on similar occasions to some of those testified to- here is per se irrational. If that were done, few citizens, I think, would care to leave the disposition of their property to the justice or discernment of the Surrogate’s Court-

Many instances of peculiar actions, doings and sayings of deceased were testified to. A man of nearly 10 years of age, he had, for many years, been without any regular occupation save caring for his large real estate interests. He owned the Mansion House (or an interest therein), numerous tenement-houses, and the greater portion of what has been long known as “ Wool-sey’s Commons,” in this city, a farm near. Rosendale, and wild lands in the Catskills, and other real estate. This real estate and the business connected therewith brought him in contact Avith a great many people.- Accustomed to spending much of his time at the Mansion House, and on account of his varied interests, he had a very extensive acquaintance. He was at times of an irascible disposition, which was increased in the latter part of his life hy excessive drinking, and there is no doubt that at the time the will was executed he was in a very feeble condition. He,- however, - continued to do his own business until the Tuesday, as-he died Wednesday morning. He literally died in the harness. He closed a real estate deal on that Tuesday that had ■ been running for several months. He, also, about the time the will was executed, and during his last sickness, gave some of his friends and relatives small mementoes, and was endeavoring to and did close up several matters of business, showing that he realized that his end was near. His wife was dead and he lived with a nephew and his housekeeper. He thought a great deal of his real estate, and went to the Commons early and late, and traveled and retraveled over it. About as pathetic a scene as ever related in this court, which abounds in them, was his being taken by his nephew, the day after the will was executed, the whole length of the Commons. It was on the last Sunday of his life, when he apparently knew that death was very near. Hnable to spend more than a half hour out of doors, his last visit was not to relative or cherished friend, but to the Commons, concerning which the testimony shows'that'hehad made so many and varied plans that some of the witnesses thought him irrational because he sold a building lot where he had at one time proposed to make a street. The only testimony as to his mental condition that is at all serious, is that of a physician, Eobinson.. Eobinson was first called Sunday, the 5th instant, and did not visit him again until Saturday, the 11th, the day the will was-executed. Eobinson could not have considered Woolsey’s condition very serious, or he would not have let six days intervene-between his professional calls. He testified to his interviews with deceased on the evening of Saturday, the 11th, went over all the conversation he said he could recollect, and found nothing in it that was irrational. His conclusion as to that conversation corresponds with my own. But iu another portion of his • evidence he says that deceased did not have a lucid interval from the 5th of April until his death, the 15th. His testimony is not consistent with itself. He also admits, and Wolfer corroborates him, that certain statements made to Wolfer and the proponent were not consistent with his evidence on the trial. In fact flatly contradicts it. He was paid $5 by Woolsey on the day of his first call and he considered that irrational, although Woolsey owed him for two other visits about a year ago-. "The-testimony of the other physicians being predicated on hypothetical questions, which questions were based on the testimony offered by contestants and on the testimony of Dr. Robinson, I do not consider as throwing much light on the actual condition of ■deceased at the time the paper offered here was executed. Several witnesses, however, were sworn who had had actual business transactions with the deceased just before, about the time, and just after the making of the will. They not only declare the acts and transactions they detail as rational, but give the trans actions themselves, which show the deceased to have been capable of protecting his own interests.

I have read over very carefully the entire evidence, and I gave it close attention while it was being taken. A further discussion would serve no good purpose. It is voluminous, over 400 pages of typewritten matter. From a conscientious review of it, I can come to no other conclusion than that George O'. Wool-sey was of sufficient understanding to comprehend the amount .and extent of his property, and who were, or might be, the objects of his bounty and to whom he desired to leave his property, and that he effectuated his testamentary intentions. Van Guysling v. Van Kuren, 35 N. Y. 70; Peck v. Cary, supra; Matter of Peck, 42 N. Y. St. Rep. 898; Matter of Clearwater, 17 id. 794.

A decree admitting his will to probate may be handed up in .accordance with this memorandum.

Decreed accordingly.  