
    In the Matter of John R. Graham, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 14, 1890.)
    
    1. Wills—Probate—Execution.
    Section 2618, Code Civ. Pro., providing that before a will shall be admitted to probate two, at least, of the subscribing witnesses must be produced and examined if so many are within the state and able to testify, has not altered the rule of proof of the requirements of the statute as to the due execution of a will. It is not necessary that each of the statutory requirements must be satisfactorily proved by two witnesses.
    2. Same.
    The mere non-recollection of witnesses, in the face of a proper attestation clause, would not justify the refusal to probate a will.
    3. Same.
    The burden of proof rests upon the proponent to establish all the propositions necessary to sustain a will, but these propositions need not be established in all respects by direct evidence.
    Appeal from decree of the surrogate, admitting will of John R.. Graham, deceased, to probate.
    
      JV. B. Hoxie, for app’lt; A. Taylor, for resp’t; M. J. Knauerr special guardian.
   Van Brunt, P. J.

The decree of the surrogate was attacked upon the ground that the evidence does not sufficiently prove-compliance with the statute as to the formal execution of the will in question, and that the decedent did not, at the time of signing' the will, understand its contents-or effect and that he was unduly influenced to execute it and therefore it was not truly his will.

The learned counsel for the appellants claims that the statute requires that the following facts should be proven by at least two witnesses,,.namely, the subscription by the testator at the end of the alleged will in the presence of two witnesses or his subsequent-acknowledgment, the publication of the will and the request to-the two witnesses to sign the same, and that they signed it in bis presence and in the presence of each other. And in support of. this extraordinary proposition we are somewhat surprised to find, that he is able to cite an authority, In the Matter of Van Geison, 47 Hun, 5; 14 N. Y. State Rep., 117, in which the court say that. in order to admit a will to probate each of the statutory requirements must be satisfactorily proved by two subscribing witnesses if so many are within the state and competent and able to testify.

If this were the rule then a lapse of memory upon the part of a witness, or any witness evilly inclined, might prevent the probate of a will.

This extraordinary proposition is founded apparently on § 2618 of the Code, in which it is provided that before a will shall be admitted to probate two at least of the subscribing witnesses must be produced and examined if so many are within the state and competent and able to testify. The section docs not say that each of the witnesses or any of them must testify that the requirements of the statute in respect to execution have been complied with.

In fact it has been decided by the court of appeals in the case of Brown v. Clark, 77 N. Y., 369, that where there is no proof that the statutory requirements had been complied Avitli, except such as is contained in the attestation clause, the will may be admitted to probate. The court say in that case, the Avitnesses after a lapse of several years fail to recollect affirmatively the facts attested by them over their signatures. The mere non-recollection of Avitnesses under these circumstances would not justify a finding that the statutory requirements were not observed. Their lack of memory does not rebut the presumption of due publication arising from the attestation clause and the other circumstances.

The same was held in the case of Peck v. Cary, 27 N. Y., 9. And in the case of The Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 422, the rule is laid down that “ it is too late to claim that the facts must all, or any of them, be established by the concurring testimony of two subscribing witnesses. Both of them must be examined, but the will may be established in direct opposition to the testimony of both of them. This is too well settled to call for the citation of authorities.”

It is needless then to multiply citations to establish the falsity of the proposition upon which the point of the appellant rests as to the due execution of the will, except perhaps to call attention to the case of Hoysradt v. Kingman, 22 N. Y., 372, where it was held that it was not necessary to the due execution of the Avill that the witnesses should subscribe in the presence of each other.

The testimony of Mr. Chedsey shoAved due execution of the will. He was a lawyer, and was presumed to know what Avas required and whether his recollection was entirely distinct or not as to occurrences which had taken place some years before. The presumptions were so strongly in favor of the execution," that the learned surrogate was more than amply justified in holding that it was established.

The objection that the testator did not at the time of signing of the will understand its contents and effect seems to be based principally upon the assumption that it is not such a will as his children would have made if they had had the disposition of his property. The appellants expressly disclaim want of testamentary capacity, but say that because of the peculiar pnmsions of the will, it is impossible that the testator understood it notwithstanding the fact that he went to his own attorney, was present while the will was being dictated to an amanuensis, heard each paragraph read, executed it some days thereafter and kept it for some years prior to his death. If we are to consider the testimony of Mi’. Chedsey it seems to be conclusive upon the point that the testator was made aware of all the ¡xrovisions of this will. As has already been said the will was dictated in his presence, was read over to the testator, paragraph by paragraph, and to its provisions he assented.

Great stress has been laid upon the fact that in the will as originally dictated by Mr. Chedsey, the daughter Belle of the tostater was called Belle Storm when in fact she was unmarried, and that it was the daughter Kate who was the wife of Mr. Storm.

We are entirely unable ,to appreciate the weight which seems to have been attached to this incident. During the progress of dictation it is very probable that the testator did not discover the mistake, but it is evident that he discovered it before the execution, because there is no pretence but that the change was made prior to excution and that there was no attempt to conceal it, as it is plainly evident upon the face of the instrument itself what existed before the words Kate and Belle had been changed. Indeed we cannot see upon what basis this objection rests except that it was the wish of all the children of the testator, the beneficiaries under this will, that the trusts contained in the will should be broken and this seems to have been the purpose for which this contest has been initiated.

But if we consider only the legal evidence in the case (because in our opinion the evidence of Mr. Chedsey as to the instructions which he received from his client was improperly received and should not be considered by the court, under the provisions of § 835 of Code, which provides that an attorney shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment), the case presented is of a will drawn by the attorney of the testator, duly executed by him before two witnesses, kept by him for some years after its execution, and found amongst his papers after his death.

It is clear that under such circumstances the necessary presumption is that the will expresses the wishes of the testator.

It is true that the burden of proof rests upon the proponent to establish all the propositions necessary to establish the will. But it is not necessary that these propositions should be established by direct evidence.

The circumstancces surrounding the execution of the will and its subsequent history may sufficiently establish all the requisites necessary to justify its admission to probate. The fact that the will is duly executed with all the formalities required by law, that it has been declared by the testator to be his last will and testament in the presence of two witnesses, who, at his request, have signed the same, presumptively establishes the proposition that the will is the will of the testator, and this presumption cannot be rebutted except by some evidence going to show that such presumption should not prevail.

It is not necessary that the testator should have a half dozen witnesses by, who should see him read his will, hear him give directions as to what it should contain; that he should express his satisfaction with each several clause and provision before several witnesses in order to show that the will expresses his wishes. The law requires no such impossibilities as this, but only such evidence as may enable the court to find that the will was intelligently executed by the testator. The proof in this case is utterly barren of anything to show that the testator did not fully comprehend the contents of this will, and it cannot be set aside upon any such ground as this.

The claim that undue influence was exercised by his former partner and their employee Meilson, is also equally unsupported by evidence. In fact tliere does not seem to be any evidence to support this claim. It seems to be based upon evidence tending to show that Neilson had told the father of certain delinquencies of the son which he said made his father angry with him. And when the son was asked, were these things so mentioned any or all of them true or false, his answer was, “I cannot say.” But there is no evidence whatever that there was any undue influence exercised by Meilson as against the decedent’s son.

And even if Mcilson was actuated by any improper motives in saying what he did, there is no evidence whatever that it had any influence upon the father, and in fact it would appear that he paid no heed to Meilson, but did actually that which he himself wished.

There was some evidence offered as to certain statements made by the testator during his lifetime, which were claimed to be inconsistent with the proVisions of his will. It is not necessary to-go into detail in discussing the evidence of Mr. Storm. It is sufficient to say that many of these statements were made prior to-the making of the will; and none seem to have been made thereafter which were inconsistent with perfect and complete knowledge of the contents of the will.

The testator lived for some five five years after the execution of the instrument, and during all that time it remained in his possession ; and although it is claimed by the counsel for the appellant that it is somewhat remarkable that a man of such wealth who had subscribed an instrument of this character should not. have deposited it with the custodian of his money and securities,, or in some place of safe deposit, or with some of his intimate friends, we are unable to see anything peculiar in the conduct of the testator in this respect.

If it had been deposited elsewhere in the custody of some particular friend, it would have been strongly argued that the testator, if he understood the importance of the instrument, would not have parted with the possession of it, nor would he have left in any other custody than his own such an instrument for so many years.

The decree should be affirmed, with costs against the in favor of both respondents.

Barrett and Bartlett, JJ., concur.  