
    Matter of the Probate of the last Will and Testament of Sarah J. Seymour, Deceased.
    (Surrogate’s Court, Saratoga County,
    April, 1912.)
    Wills — the testamentary instrument or act — exeéution- of will — evidence of execution — testimony of subscribing witnesses — probate, establishment and annulment.
    Under section 835 of the Code of Civil Procedure an attorney, the draftsman of a will, but not a subscribing- witness thereto, is incompetent to testify as to what he heard the subscribing witnesses say to testatrix, or what he heard her say to them, or what he himself said to her at the time' of the execution of the will in the presence of all the others, or as to the mental condition of' said testatrix and of the influence under which she acted.
    Where testatrix was apparently- able to conduct her ordinary affairs, testimony that she was not particularly intellectual considered, and held insufficient to rebut the presumption of mental capacity.
    Where the will was prepared and. its execution supervised by a ' competent attorney, and one of the three subscribiiig witnesses testified to a memory of all the facts sufficient to constitute a due
    • execution and publication, probate will be decreed though the other witnesses do not in all things remember, as matter of independent memory, all the circumstances surrounding the testamentary act. '
    Proceedings upon- the probate of a will.
    L. B. McKelvey, for executrix.
    Irving- W. Wiswall, for Daniel Seymour, Horman Seymour, Harvey Seymour,' Mrs. W. S. Bentley.
    Charles B. Andrus, special guardian for Inez-'Scott.
    B. P. Wheat, special guardian for Cora Scott.
   Ostrander, S.

This is an application for probate of a paper purporting to be the last will and testament of Sarah J. Seymour, deceased, and which bears date May 20, 1911, signed by Sarah J. 'Seymour and witnessed by Dr. T. C. Royal, Kate W. Hawkes and Lizzie H. Hawkes. The alleged will is in due form and has the usual form of attestation clause which was signed in the presence of these witnesses' and was executed .under the direction of Burton D. Esmond, the lawyer who prepared the will and who has had considerable experience in the preparation of such instruments. On the trial Esmond was permitted to testify as to the facts and circumstances which occurred at the signing, publication and execution of the will, there being present at;the time the three witnesses to the will as well as the testatrix. The question of his competency to testify was raised upon the trial, it being claimed that he was not competent because of the provisions of section 835 of the Code of Civil Procedure, forbidding an attorney to testify in certain cases. He was not called upon to testify to any communications made to him by the testatrix in the course of the preparation of the will, or any instructions given him by her, but only in regard to what he heard the various witnesses say to her and what he heard her say to the witnesses and what he himself said to her at the time of the execution of the will in the presence of all the others. In my opinion there is no authority in our own state courts- which prohibit his testifying as to such matters, but the case of Fayer-weather v. Butler,.91 Fed. Hep. 458, in the Circuit Court of Appeals of the United States, seems expressly to hold that ‘an attorney is prohibited by the provisions of our Code, section 835, from testifying as to the facts surrounding the execution of a will which was signed by the testator in the presence of the attesting witnesses, in the form and manner to constitute a valid publication, the attorney being present at the time of the alleged publication, but not being an attesting witness. I feel, therefore, constrained to hold that the testimony of Esmond should be wholly disregarded in so far as it relates to the matters which he testifies be saw and heard at the time of the execution of the will and as to the mental condition of- the deceased and of the influence under which she acted. I have, accordingly, in reaching my conclusions, disregarded wholly such testimony.

Testimony was given relating to the mental soundness of the deceased, from which it appears that she was not a particularly intellectual person, but she seems to have had ordinary common sense, to have been able to fairly conduct her ordinary affairs and to understand her surroundings and I do not think anything has been shown sufficient to rebut the presumption of her mental capacity.

Some testimony was also given attempting to show undue influence .upon her in the execution of the will, but I do not think there is sufficient proof of undue influence upon her.

Coming then to the execution of the will: We have a paper apparently executed in due form. It has an attestation clause in due form and.duly signed by the various witnesses. The instrument was prepared and its execution supervised by a competent attorney. At least one of the witnesses testified to a memory of all the facts sufficient to constitute a due execution and publication of the will. The other witnesses do not in all things remember as matter of independent memory all the circumstances surrounding the execution of the will, but I think the testimony is sufficient to establish the due execution and publication of the instrument as the last will and testament of the deceased.

Let findings and a decree for probate be submitted accordingly.

Probate decreed.  