
    Estate of Zetta Lissauer, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed February 9, 1889.)
    
    1. Will—Probate of—Rule as to onus fbobandi.
    • The rule in this state is that the onus probandi is upon the proponent to satisfy the surrogate that the writing propounded is the last will of a free and capable testator.
    2, Same—Proof necessary.
    Where a testator is deaf and dumb, or is subject to such infirmities of body or mind as expose him to deception, the proponent must furnish the clearest proof that no imposition has been practiced, before the will will be admitted to probate.
    
      Joseph E. Newburger, for proponent; A. H. Berrick, for contestant.
   Ransom, S.

—Section 2623 of the Code of Civil Procedure provides: “If it appears to the surrogate that the will was duly executed, and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint, it must be admitted to probate as a will valid to pass real property, or personal property, or both, as the surrogate determines.” * * * The rule of decision in this state is that, if there be a reasonable doubt whether one or more of the directions of the statute have not been complied with, probate must be refused, even though it appear probable that the paper expresses the testator’s intention. Theological Sem. v. Calhoun, 25 N. Y., 422; Rider v. Legg, 51 Barb., 260; Nexsen v. Nexsen, 3 Abb. Ct. of App. Dec., 360.

I am unable to decide from the evidence taken and reported to me for my consideration, by the assistant, whether the testatrix, at the time of executing the paper propounded as her last will, was “competent to make a will.”

The rule on this point was stated by Baron.Pabke in a case decided by the judicial committee of the privy council of England, upon appeal from the prerogative court. Barry v. Butlin, 1 Curteis Ecc. R., 637. He says: “The rules of law, according to which cases of this nature are to be decided, are two. The first, that the onus probandi lies, in every case, upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” * * * This is the rule in this state. Crispell v. Du Bois, 4 Barb., 397; Delafield v. Parish, 25 N. Y., 36; Kingsley v. Blanchard, 66 Barb., 317; Rollwagen v. Rollwagen, 63 N. Y., 504; Lake v. Ranney, 33 Barb., 49.

Lord Brougham, in Panton v. Williams (2 Curteis, 530),. said in substance that, it is not the duty of the court to strain after probate, nor in any case to grant it where grave doubts remain unremoved, and great difficulties oppose themselves to so doing. This doctrine was approved in Delafield v. Parish (supra).

In Rollwagen v. Rollwagen (supra) the court of appeals said: “ Ordinarily, when a testator subscribes and executes a will in the mode required by law, the fact of such subscription and execution is sufficient proof that the instrument speaks his language and expresses his will; but when a testator is deaf and dumb, or unable to read and write and speak, something more is demanded. There must then not only be proof of the factum of the will, but also that the mind of the testator accompanied the act, and that the instrument executed speaks his language and really expresses his will.”

In Jarman on Wills, p. 29, it is said: That in proportion as the infirmities of the testator expose him to deception, it becomes imperatively the duty and should be anxiously the care of all persons assisting in the testamentary transaction, to be prepared with the clearest proof that no imposition has been practiced, but that the testator did, in fact, fully understand every portion of the paper which he executed as his will.” See also Weir v. Fitzgerald, 2 Bradf., 42.

It is probable that the doubt in my; mind would be removed if the witnesses were to testify m my presence. The learned assistant has conducted the proceedings before him with great caution, and has aided counsel to bring out all the facts. But the manner of the witnesses in testifying, their appearance on the witness stand, are unknown to me, and in a proceeding where there is such sharp conflict of evidence, I must have the advantage of seeing and hearing the witnesses. I cannot determine as to the capacity of the testatrix at the time she executed the paper propounded. The question is, did the testatrix, at the time of executing the paper propounded, comprehend its meaning? Was she then capable of knowing what she was-doing?

I think I may lawfully transfer this proceeding to the court of common pleas, for the purpose of a jury trial. Section 2547, Code. However, I do not now decide upon that. I do hold that the proceeding must go to the jury, or that it must be tried before me de nova.

I will hear counsel on the opening of court the 11th instant.  