
    Matter of the Estate of Eliza Sears, Deceased.
    
      (Surrogate’s Court, Cattaraugus County,
    
    
      Filed November, 1900.)
    1. Will — When the Attorney Cast Testify to Its Execution — Code C. P., §§ 835, 836.
    Unless an attorney is a subscribing witness to a will he cannot testify to its execution by his client.
    2. Saiie — Execution—Failure of Witnesses* Memory of the Facts.
    Where a will, executed fifteen years ago, contains a full attestation clause, and the signatures of the testatrix and those of the subscribing witnesses are duly proved, probate should be granted, although the said witnesses are presently unable to testify affirmatively that the testatrix declared the instrument to be her will and requested them to sign it as witnesses.
    Proceedings on probate of will.
    Goodwill & Benson, for proponent; Ansley & Spencer, for contestants.
   Davie, S.—

The testatrix died March 26, 1900, leaving her surviving one daughter and two grandsons, the children of a deceased son, as her only heirs-at-law and next of kin.

The instrument offered for probate bears date duly 25, 1884, and by its provisions the testatrix gives her entire estate to the daughter. The grandsons contest the probate on the alleged grounds of undue influence and lack of testamentary capacity, as well as upon the ground of a failure to comply with the statutory requirements in the execution of the will.

The evidence quite satisfactorily shows testamentary capacity on the part of the testatrix at the date of the execution of the will; .and, while it appears that the relations between the testatrix and the daughter, her sole beneficiary, were, at the time of the making of the will, of a close and confidential character, yet the evidence falls far short of being sufficient to defeat probate on tbe ground of undue influence. Tbe rule seems to be well settled that to avoid a will on tbe ground of undue influence it must be made to appear that it was obtained by means of influence amounting to moral coercion, destroying free agency, or by importunity wbicb could not be resisted, so that tbe testator was constrained to do that wbicb was against bis actual will, but wbicb be was unable to refuse or too weak to resist. Brick v. Brick, 66 N. Y. 144.

In those cases where one member of a family obtains control of a parent, aged and infirm, by constant importunity and insidious efforts, and produces a testamentary disposition in favor of tbe one exercising such influence, and to the exclusion of those having equal claims, it becomes necessary for tbe law to extend its protection in order to prevent such improper and unjust interference. Delafield v. Parish, 25 N. Y. 95; Tyler v. Gardiner, 35 id. 594. Yet tbe evidence fails to' bring this ease within tbe operation of tbe principles enunciated by tbe cases last cited. Tbe will in question was executed more than fifteen years before tbe death of tbe testatrix, and at a time when she possessed good business capacity; substantial reasons are also disclosed for discrimination in favor of tbe daughter as against tbe contestants, and, all considered, it cannot be said that tbe will is unjust or harsh in its terms or provisions.

These considerations eliminate every question on this contest aside from that of tbe formal execution of the will. On tbe trial tbe proponent called as a witness the attorney who prepared and superintended tbe execution of tbe will, and sought to establish by bis evidence the details of such execution. Such evidence was objected to as being incompetent under tbe provisions of section 835 of tbe Code, and it was thereupon stipulated that such evidence be taken and retained or excluded, with tbe proper exception, on the final consideration of tbe case. Tbe question of the admissibility of this evidence is one wbicb now first claims attention.

The section of tbe Code above referred to provides': “ An attorney or cotmselor-at-law shall not be allowed to disclose a communication, made by bis client to him, or bis advice given thereon, in tbe course of bis professional employment,” etc. Section 836 of tbe Oode, qualifying, sections 833, 834 and 835, as .amended by chapter 416 of tbe Laws of 1877, was as follows : “ Tbe last three sections apply to any examination of a person as a witness unless tbe provisions thereof are expressly waived ... by tbe person confessing, tbe patient or tbe client.” Section 836 was modified by chapter 295 of tbe Laws of 1893 by providing as follows: “But nothing herein contained shall be construed to disqualify an attorney in tbe probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, .as to its preparation and execution in case such attorney is one of tbe subscribing witnesses thereto.” Tbe amendment of section 836 above referred to was merely declarative of tbe law as it then stood, for tbe Court of Appeals bad at that time passed upon this question in tbe leading case of Matter of Coleman, 111 N. Y. 222. It is claimed, however, on part of tbe proponent, that tbe transaction passing between tbe testatrix and tbe attesting witnesses, at tbe time of the execution of tbe will, in tbe presence and under tbe direction of the attorney, are not excluded by tbe provisions of tbe Code cited; but it was determined in tbe Matter of O’Niel, 26 N. Y. St. Repr. 242, that “ Practically, all that a man may say to an attorney, who is employed by him to draw bis will and to superintend its execution, upon that subject, and all be may say to anybody else in tbe attorney’s presence and bearing at tbe time, cannot be lawfully disclosed by tbe attorney. Tbe only exception is when tbe attorney is a subscribing witness.” See also Matter of Lamb, 21 Civ. Pro. 324. In tbe case last cited, it was said that “Tbe language of section'835 of tbe Code, strictly construed, does not admit of a lawyer testifying to tbe facts attending tbe execution of a will drawn by him. for bis client.” A careful examination of tbe sections of tbe Code referred to, and tbe decisions relating to tbe same, leads to tbe conclusion that tbe attorney wbo prepared and superintended tbe execution of tbe will in controversy is not a competent witness to testify to tbe same. Consequently, tbe will must be either admitted to, or denied, probate upon tbe other evidence in tbe case.

At tbe end of tbe will is an attestation clause, full and complete in every particular, reciting tbe fact that The above-written instrument was subscribed by tbe said Eliza Sears, in our presence, and acknowledged by her to each of us ; and she, at tbe same time, declared tbe above instrument, so subscribed, to be her last will and testament; and we, at her request, have signed our names as witnesses hereto, in her presence, and in tbe presence of each other, and written opposite our names our respective places of residence.” This attestation clause is signed by both of tbe attesting witnesses, both of whom are called and examined as witnesses on behalf of tbe proponent in this proceeding, and testify that they remember tbe occurrence of tbe execution of tbe will, and that they saw tbe testatrix sign the same, and that they signed as witnesses, in her presence and in tbe presence of each other; that tbe signatures at tbe end of tbe attestation clause are their respective signatures; but they each testify that they have no recollection, at tbe present time, of any declaration on tbe part of the testatrix that tbe instrument so subscribed by her was her will, nor do they either recollect that she requested them to sign as attesting witnesses. These witnesses do not assume to testify as a matter of present recollection that tbe testatrix did not, in fact, declare the instrument subscribed by her to be her will, or that she did not request them to sign as witnesses; but their evidence discloses a total want of present recollection in regard to these two subjects. Tbe attesting witness, Austin ITolt, testi-fled, among other things, as follows: Q. Do yon remember at one time of witnessing her will ? A. I do. Qi Do yon re; member her signing this paper? [Will shown witness.] Q. Is that Mrs. Sears’s signature ? A. The signature to the will is Mrs. Sears’s'. Q. Do you remember who requested you to witness the will? A. It is my recollection that you (Mr. Benson, the attorney who prepared the will) did. Q. Do you remember who went up with you ? A. I haven’t a clear recollection of that. Don’t know whether I went up alone or with Mr. Dow (the other attesting witness). Q. Do you remember at the time when Mrs. Sears signed this instrument that Mr. Dow and yourself were present A. I do. Q. Who signed the will first? A. Mr. Dow, as witness. Q. Did Mrs. Sears sign it first ? A. I think you (Mr. Benson) called our attention to Mrs. Sears signing the will as we stood there.”

The other attesting witness testified as follows: [Will shown witness.] “ Q. Do you remember the execution of that paper ? A. Yes, sir. Q. Were you present when the will was signed by Eliza Sears ? A. Yes, sir. Q. Where was it signed A. At Mr. Benson’s office, over Adams’s store. Qi. Was Mr. Austin Holt present? A. I think we went up together, and Mrs. Sears was there. Q. Do you remember Mr. Holt signing in your presence? A. Yes, sir. Q. Were you and Mr. Holt requested to sign this instrument as witnesses to her will ? A. Yes, sir; and my recollection is that she signed it in our presence. Q. Did you sign it in her presence ? A. Yes, sir. Q. What did she say it was ? A. I was in the bank and was called up there to witness her will. This is my signature. I don’t know that I saw the fore part of the paper. I knew it was a will by the form of it. Q. Do you remember who requested you to come and sign the will? A. It is my impression that you (Mr. Benson) did, but Mrs. Sears might have done it.”

On his cross-examination, this witness further testified as follows: “ Q. When you went up into Mr. Benson’s office, who was present? A. My recollection is that Mr. Benson, Mrs. Sears, Mr. Holt and myself were the only ones. Q. Do you swear positively that there were no others in the room ? A. 1 could not do that. Q. Will you swear that her daughter Albina was not there? A. Don’t think she was5 can’t swear that. Q. Did Mr. Benson have more than one room there ? A. Tes, sir. Q. Were you in both of those rooms ? A. I could not swear as to that. Q. Did Mr. Holt leave when you did? A. I could not swear as to that. I signed the will first. I was taken from my office in the bank, and I usually got back to business as quick as I could. Q. Did you wait until Mr. Holt had signed ? A. I could not swear as to that. Q. Do you remember of anything that the old lady, Mrs. Sears, said at that time ? A. No, sir. Q. All you did was to go in there and see her sign, and sign your name? A. That’s about all the recollection I have about it after I signed it. Q. Did you say that you did not know whether it was Mr. Benson or Mrs. Sears that came after you? A. I believe I did.”

On his re-direct examination, this witness further testified that he read over the attestation clause at the time of the signing of the will, and further testified as follows: Q. You may have had some talk with Mrs. Sears there in the office ? A. I may have had, but I have no recollection of any. Q:. What is your present recollection, whether you did or did not have any conversation with Mrs. Sears at that time ? A. As regards the will, I have no recollection of any.”

I refer to this evidence somewhat in detail for the purpose of showing that neither of these witnesses have assumed to testify that the fact of publication and request to them to sign did not take place. The only criticism that can be passed upon their evidence is that they do not at the present time recollect these facts. In other words, there is a failure of recollection upon the part of the attesting witnesses in these particulars. It is not essential to the due publication of the will that the testator shall declare in express terms, in the presence of the subscribing witnesses, that the instrument is bis last will. It is sufficient if be, in some way, makes known to them, by acts or conduct, if not by words, that it is intended and understood by him to be bis will. Where, therefore, a testator subscribes a will in the presence of the witnesses, and by his conduct made known its nature, and requested their attestation, held, that there was a substantial compliance with the statute sufficient to entitle the will to probate. Lane v. Lane, 95 N. Y. 494.

The Code provides that if A subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” Code Civ. Pro., §. 2620. In this-case, the proof of signature of the testatrix and of the attesting witnesses is complete, and the recitals in the attestation clause, if true, show a full compliance with the statutory requirements- in every particular. In an early case (Nelson v. McGiffert, 3 Barb. Ch. 158), the Chancellor held that an attestation clause, after a considerable lapse of time, when it may reasonably be supposed that the particular circumstances attending the execution of the will have escaped the recollection of the attesting witnesses, is a circumstance from which the court or -a jury may infer that the requisites of the statute were complied with. This rule has been substantially adopted in subsequent decisions. Jessop Sur. Pr. 386; Matter of Bernsee, 141 N. Y. 389; Matter of Pepoon, 91 id. 255; Matter of Cottrell, 95 id. 329; Brown v. Clark, 77 id. 369.

In the following eases a full attestation clause was instrumental in sustaining the will where the memory of the witnesses was defective: Matter of Graham, 9 N. Y. Supp. 122; Matter of Hunt, 110 N. Y. 278; Matter of Rounds, 7 N. Y. St. Repr. 730; Matter of Townley, 1 Connoly, 400; Matter of Wilcox, 14 N. Y. Supp. 109; Matter of Lantry, 5 id. 501; Matter of Frey, 2 Connoly, 70.

In view of all tbe circumstances attending tbe execution of tbe will, tbe long lapse of time intervening since its execution, tbe business ability and capacity of tbe testatrix at tbe time, tbe fact that tbe will was prepared and executed under tbe superintendence of an attorney; tbe fact that tbe terms of tbe will appear to be reasonable and equitable, and that it does not appear that tbe testatrix bas ever made any subsequent will, or in any manner attempted to modify tbe terms or provisions of tbe will in question, all lead to tbe conclusion that tbis will should not be defeated in consequence of tbe mere lack of recollection on tbe part of tbe attesting witnesses as to tbe fact of publication and request; especially in view of tbe fact that tbe attestation clause, signed by these witnesses at tbe time tbe transaction occurred, recites tbe fact that such publication and request were properly made.

Tbe will should be admitted to probate, and tbe objections filed to probate disallowed. A decree will be entered accordingly.

Decreed accordingly.  