
    In the Matter of the Proof of the Will of Francis Raynor, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Will—Probate—Evidence—Trial by jury.
    Where it appeared on application for prohate of an alleged will that ■decedent was a man upwards of seventy, had been stricken with paralysis some months before the alleged will was drawn, and was then lying helpless and speechless, that he made no attempt at spontaneous expression, but at most responded only by look or gesture to questions put or suggestions made ; that two persons had tried to draw the will; that the first failed absolutely to understand deceased, as did the second until aided by a woman present, who put questions and drew conclusions as to his wishes; that decedent seemed to assent when the will was read over to him and touched the pen while his mark was made, Held, that a decree admitting the will to probate should be reversed, and a trial by jury ordered.
    Appeal by contestants from a decree of the surrogate of Erie ■county, granting probate to the alleged will of the deceased.
    
      W. H. Hotchkiss and M. Shire, for app’lts; Gf. H. Stillwell, for resp’ts.
   Dwight, P. J.

No question is made on this argument as to the testamentary capacity of the decedent at the time of the exe-cution of the paper propounded as his will. The questions discussed are, does the proof satisfactorily establish the fact (1) that the paper thus propounded 'embodies the actual will and purpose •of the decedent; and (2) that it was intelligently and intelligibly published and declared by him to be his last will and testament.

The deceased was a man of upwards of seventy years of age. Some months before this alleged will was drawn he had been stricken by paralysis, and he was then lying helpless and speechless, unable to utter an articulate sound or to move his right hand. He made no attempt at spontaneous expression, but, at the most, responded only by look or gesture to questions put or .suggestions made to him. How it came to be understood that he -desired to make a will does not appear, but it seems that a scrivener was sent for at the same time as the priest, at a moment when the sick man was supposed to be in extremis.

The first person brought in to write the will attempted to communicate with the testator, but was able only to elicit the same motions of the head and one hand and the same gutteral and in .articulate sounds as expressions alike of assent and dissent, and he abandoned the attempt as hopeless. Another person brought in for the same purpose, and who finally wrote the paper propounded as a will, seemed to have experienced the same difficulty in communicating directly with the sick man, and declared to his friends that he could make nothing at all out of the interview with him. It was only when a woman present, whom he took for a nurse, but who seems to have been only a neighbor who came in from motives of curiosity and kindness, volunteered to act as interpreter, that he obtained any idea of the supposed wishes of the testator; and such ideas as were thus communicated to him the scrivener reduced to writing. The testimony of this woman and of other persons present, as to the means by which the supposed wishes of the testator were elicited, is very confused ¡and sometimes contradictory. The idea that the first wish of the .sick man was to make a bequest to his parish priest seems to have been first suggested to the interpreter by his pointing in the .supposed direction of the church; and from this rather uncertain indication, and by means of questions suggested by it, she was able to reach the conclusion that he desired to give $1,000 to the priest, of which $500 were to pay for masses for the repose of his .•soul and $500 was to be used for the purposes of the church.

The other dispositions of his property embraced in the will were indicated in much the same way, and, as understood, consisted of the absolute gift of all the rest and residue of an estate, real and personal, valued at from $50,000 to $100,000, to his wife, with the sole condition that after his death the sum of $100 .should be paid to each of his grandchildren, five in number, of whom three were children of a deceased son. Besides these his heirs-at-law consisted of two sons and three daughters.

The above provisions, with the designation of his- wife and eldest son as executors, having been reduced to writing, the paper was read over to the decedent, and, as the witnesses testify, was assented to by him in the same manner in which his supposed assent had been indicated to its several provisions. The paper was then executed by the scrivener’s appending the mark of a cross while the decedent touched the pen. After that he was asked whether he was satisfied to have the three attesting witnesses sign as such, to which he was understood to assent.

This is the substance of the evidence in support of the propositions that the paper in question embodied the full, free and intelligent purpose of the testator in respect to the disposition of his. property, and that it was duly published and declared by him as- and for his last will and testament.

A valid will may, no doubt, be made and published by a person unable to write or speak, by the use of signs; but to entitle-such a will to probate, there must be clear and satisfactory proof of what was intended by the signs employed, and that they were correctly understood and faithfully interpreted by the person to-whom they were addressed. Rollwagen v. Rollwagen, 3 Hun, 132, and 63 N. Y., 518, and the cases cited. We have found it. impossible to derive from the evidence in this case that degree of satisfaction in respect to the essential facts above stated which would warrant us in affirming the decree appealed from, and,, without further discussion of those facts, we state our conclusion that the questions involved ought to be submitted to a jury, in. accordance with the statute. Code Civ. Pro., § 2588.

Decree reversed on the facts, and a trial by jury ordered of the-material questions of fact arising upon the issues between the parties; such trial to be had in the circuit court in Erie county; order to be settled by the presiding justice of this court; costs of this appeal to abide the final award of costs.

Macomber and Lewis, JJ., concur.  