
    In the Matter of the Will of Robert Stewart, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    1. Will—Probate.
    Where upon proof of a will the proponent called only one of the subscribing witnesses, both being present in the court room, and rested, and subsequently the other subscribing witness was called by the contestant, and sufficient proof of the statutory requirements was made by these witnesses and others, Held, that § 2618, Code Civ. Pro., had been complied with.
    2. Same—Testamentary capacity.
    The fact that an aged person is forgetful does not per se establish want of testamentary capacity, so long as the testator is not so far bereft of reason as not to have a just appreciation of the nature of the business and the natural objects of his bounty.
    Appeal from the decree of the surrogate of Sullivan county, refusing to admit to probate an instrument in writing purporting to be the last will and testament of Robert Stewart, late of Sullivan county, deceased.
    The will was presented to the surrogate for probate upon the petition of the executrix and sole legatee named therein, who was the widow of the testator.
    Elizabeth Thomson, one of the subscribing witnesses to the will, and the only child of the testator and petitioner, filed objections to the probate, alleging as follows :
    
      First. The said Robert Stewart was at the time of the execution of said instrument not of sound mind and memory, but was mentally incapable of making and executing a last will and testament.
    
      Second. The said Robert Stewart, at the time of executing said instrument, was under restraint and undue influence, and the execution of the same was procured by fraud and duress to the prejudice of said Elizabeth Thomson.
    The case was heard before the special surrogate of Sullivan county.
    The case discloses that the testator was at the time of making the will about eighty years of age, and that he and his wife, an old lady, had left their farm, and were living in the house of their son in-law Andrew Thomson, husband of the contestant Elizabeth.
    The will was drawn by the surrogate of Sullivan county at the solicitation of the testator, and to whom he gave directions as to the manner in which he desired his property to be disposed.
    The testimony of the draftsman of the will upon that subject is as follows:
    “ I said to Mr. Stewart: How do you want to leave your property? And he said he wanted to protect the old woman; I then said, do you want to give it to her absolutely.”
    And he replied: “ Give it all to her.” After the will was drawn, it was read to him in the presence of his wife, Mrs. Thomson, the contestant, and her family, and testator said : “ It is all right.” And it was there executed by the testator, and witnessed by Mrs. Thomson and her daughter at the request of the testator, although that request was made at the suggestion of the draftsman of the will.
    There was evidence offered by the contestant tending to show that the testator’s memory was in some degree impaired, but in most of the instances enumerated by the witnesses he was capable of recalling past events, when his attention was directed specially to them.
    The proponent, in presenting his evidence in the first instance, failed to call and examine Mrs. Thonrson, one of the subscribing witnesses, who appeared as the contestant, but before the case was finally submitted to the surrogate, she was called in her own behalf as a witness, and then swore that she was present at the time testator signed the will, and that she signed it at the same time as a witness.
    The execution was also duly proved by the other attesting witness, and the draftsman, and another daughter of contestant also swore to the testator’s signing the will in the presence of the witnesses and to their subscribing it as witnesses, at his request.
    
      Peter M Palen {Arthur G. Butts, of counsel), for app’lt; Thorn-ion G. Niven, for resp’t.
   Mayham, J.

The learned surrogate refused to admit the will to probate, on the ground:

First. That there was no sufficient legal proof given of the due execution and validity of said instrument as the last will and testament of said Robert Stewart.

“And further by reason of the mental incompetencv of the said Robert Stewart, that said instrument is utterly null and void, and invalid, as and for the last will and testament of the said Robert Stewart, deceased.”

We cannot agree with the learned surrogate upon either of these propositions.

No question seems to be raised that the formal statutory requisites to the valid execution of this will were not complied with, substantially as required by statute, and indeed none could be.

It was subscribed by the testator at the end thereof, and was at the request of the testator attested by two subscribing witnesses, in his presence and in the presence of each other.

But it is insisted by the learned counsel for the contestant that as the proponent rested her case without calling both of the subscribing witnesses, she violated, or failed to comply with the provisions of the statute, which requires that at least two of the subscribing witnesses, if they are attainable, shall be examined in order to the admission of a will to probate.

The language of the statute relied upon which is now enacted in the Code of Civil Procedure, is as follows:

“ Before a written will is 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.” Code of Civil Procedure, § 2618.

Under this provision of statute, it is quite manifest that, if Mrs. Thomson, who was within the state and competent to testify, had not been called, the prohibition of the statute might have been effectual.

But we are not called upon to determine that question here. Before .the case was closed she was called and examined, and hence the requirement of the statute in that respect was complied with, and while by her testimony she attacks the testamentary capacity of the testator, she substantially concurs with the other witnesses in proving the due execution of the will.

There is nothing in the statute making it obligatory on the proponent to call both of the subscribing witnesses provided they are produced and examined in the case.

“ Both of the witnesses must be examined, but the will may be established, even in direct opposition to the testimony of both of them.” Trustees of Auburn Sem. v. Calhoun, 25 N. Y., 425; Will of Cottrell, 95 id., 329.

But it is insisted that the testator at the time of the execution of this will was not possessed of testamentary capacity, and for that reason the probate of the will was properly refused.

One of the attesting witnesses, who is the daughter of the contestant, testifies that: “His mind and memory was all right." She had known him all her life, noticed that his memory was failing, but his mind was sound, and her narration of facts and circumstances seemed to support her conclusion on that subject.

The other subscribing witness, although the contestant, does not disclose by her testimony that the testator was impaired in his judgment, or intellect, except as evidenced by failing memory.

The testimony of William L. Thornton, who drew the will, when taken as a whole shows that the testator had a clear appreciation of the business he was transacting.

That he well understood whom he desired to make the beneficiary in his will, and why he desired to do so. He said : “ He wanted to protect the old woman.”

The other witness present at the time of the execution of the will was Lizzie I. Thomson, another daughter of contestant, who swears that: “ I think grandfather’s mind was all right at the time; have never noticed anything out of the way ; have known grandfather ever since I can remember.” She adds that his memory .was failing.

All of the witnesses called by the contestant speak of his failing memory, but none of them disclose a state of facts showing that the testator’s mind or memory was so far enfeebled as that he was unable to comprehend the condition of his property, or to understand who were the proper objects of his bounty.

When speaking upon the subject of making his will he insisted upon Judge Thornton drawing it, and when some one else was suggested he said: “ Ho, no, I know Judge Thornton better, he is the one I want.” When the will was read over to him, he said, “ It is all right it; is just as I want it.”

It is quite manifest in this case that the testator possessed sufficient strength of mind and memory to make a valid testamentary disposition of his property.

He had sufficient active memory to realize that he had a wife with whom he had lived for about fifty years whom he ■ought to protect.

He was capable of appreciating the importance of the act in which he was about to engage, and to make his own selection of .a draftsman.

He could, without prompting as to the person, state to whom he desired to give his property. In short, he fulfilled all the re•quiremgnts prescribed by the court of appeals in that leading and well considered case of Delafield v. Parish, 25 N. Y., 9, where the court says:

“He must have sufficient active memory to collect in his mind, without prompting, the particulars, or elements of that business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them.”

The fact that an aged person is forgetful does not per se establish want of testamentary capacity, so long as the testator is not so far bereft of reason as not to have a just appreciation of the nature of the business, and the natural objects of his bounty.

Here the emotions manifested by the testator showed that he regarded this as one of the most important acts of his life.

On the whole case on the proof as it stands we think the decree of the surrogate refusing to admit this will to probate should not be sustained. Decree reversed.

Order for trial at court on issues.

Issues and order to be settled by Mayham, J.

Learned, P. J., and Landon, J., concur.  