
    In the Matter of Proving the Last Will and Testament of Jane Schreiber, Deceased, as a Will of Personal Property. George Schreiber, Appellant; Katie Malone, the Executrix Named in the Last Will and Testament of Jane Schreiber, Deceased, Respondent.
    First Department,
    April 20, 1906.
    Will — evidence of testamentary capacity must be given on probate — wben question of due execution should be tried by jury.
    When on the probate of a will no evidence is given before the surrogate that the testatrix had testamentary capacity and was not under restraint, probate should be refused.
    Although there is a presumption that every man is sane, section 2623 of the Code of Civil Procedure requires proof of the capacity of a testator on proceedings for probate, and this proof must be given by evidence.
    When the will was executed while the testatrix was very ill and paralyzed, and one witness to the execution does not testify that she was requested to sign as witness, and there is no evidence that the testatrix knew the' contents of the will other than that it was read over in her presence, an order of probate should be reversed and the question of due execution left to a jury.
    Ingraham, J., dissented, with opinion.
    Appeal by George Sohreiber from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 7th day of March, 1905, admitting to probate a paper purporting to be the last will and testament of Jane Sohreiber, deceased.
    
      Charles O. Maas, for the appellant.
    
      James Ridgway, for the respondent.
   McLaughlin, J:

On the 19th of October, 1904, Jane Sohreiber died, leaving what purported to be her last will'and testament, which bore date October 14, 1904, and upon proceedings taken by the executrix therein named, the same was admitted to probate against the objections of. decedent’s husband, as her last will and testament, valid to pass personal property, and he has appealed.

The validity of the decree of the Surrogate’s Court admitting the will'to probate, is challenged principally upon'the ground that there was (l).no proof to establish testamentary capacity of the testatrix; arid (2) that the proof was insufficient to justify, a finding that there was a due execution and publication of the instrument as a last will and testament: The two subscribing witnesses were the only ones sworn in the probate proceedings, neither of, whom, by way of opinion or otherwise/ gave' any testimony whatever bearing on the subject of testamentary capacity of the testatrix, or that she was, at the ■ time of the execution,' not under restraint.

' Section 2623 of the Code of Civil Procedure expressly provides ¡that 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,” then it musf be admitted to probate. The phrase “if it appears to the surrogate,” as used in this section, implies that theremust be some evidence given tending to show that the person who made the will was competent to make it, and, at the time of its execution not under restraint. Evidence, is the only way by which a fact can be made “ to appear ” to one acting in a judicial capacity. This must be. so, otherwise there would be no way of reviewing an official act., This section,, therefore,, is equivalent to a positive requirement that the fact of competency must be established in the first instance by sufficient, evidence by the. proponents of a will. This is usually done by the. subscribing witnesses (Miller v. White, 5 Redf. 321); inasmuch as the proponent has the affirmative of the issue (Matter of Cottrell, 95 N. Y. 336 ; Matter of Freeman, 46 Hun, 458), arid unless it be done, probate should be refused. (Matter of Goodwin, 95 App. Div. 183.) Indeed, if there could have been any doubt upon the subject, it was removed by Matter of Ramsdell (16 N. Y. St. Repr. 281), where probate Was denied upon this express ground and the decree of the surrogate was affirmed by the late General Terin (20 N. Y. St. Repr. 446), which in turn was affirmed by the Court of Appeals (117 N. Y. 636). And to the same effect is Matter of Goodwin (supra) and Kingsley v. Blanchard (66 Barb. 317).

It is undoubtedly true that there is a presumption, as contended by the responden % partly of "law and partly of fact, that ¿very man is sane. But this presumption is not enough, in view of the section of the Code referred to, to he the basis of a finding that a testator, at the time an alleged will was made, was competent to maké it and not under any restraint.

The evidence bearing upon the execution and publication of the will is quite meagre. The will, as already indicated, was made only a few days before the testatrix’s death, and at a time when it is quite evident she was very ill. The witness McMullen testified : “ I went over there and I was asked to sign the paper, and I done so. It was read over to Mrs. Schreiber. After it was read over to Mrs. Schreiber she signed her name. The pen broke. It was with her paralyzed hand that she done it.” The witness does not say who requested her to sign, nor is there anything in her testimony to indicate — other than the reading of the will and that thereafter the testatrix signed it — that she knew, when she did so, it was her will.

As to the other witness, she testified: “ The will was read and she recognized me. She nodded to me. * * * I was requested to sign that; to write our names. Mrs. Schreiber requested it.” Just how the request was made does not appear, but the witness further stated: I heard the paper read. It was read to us all there. She nodded to me that I should sign it. She could not speak very well. She was paralyzed, but she was conscious. She recognized me when I came in and nodded to me, but could speak very little.” This is substantially all the testimony there is bearing upon the question of the execution and publication, and while it may be sufficient, nevertheless, it is so unsatisfactory that I think there should be a further hearing on the subject.

I am of the opinion, therefore, that the decree of the surrogate should be reversed and an order made under section 2588 of the Code of Civil Procedure directing the trial by a jury of the questions of the competency of the testatrix, as well as the due execution and publication of the will, with costs to the appellant to abide the event, payable out of the estate.

O’Brien, P. J., Clarke and Houghton:, JJ., concurred; Ingraham, J., dissented

Ingraham, J. (dissenting):

I do not think that, under section 2623 of the Code of Civil Pro> cedure, the surrogate is bound to reject a will because the subscribing witnesses do not state that in their opinion the testator had testad mentary capacity,.when there is no evidence.to j.ustify a finding that the testator liad no testamentary capacity at the, timé of the ■execution of the will. Under section 2623 it must appear "to the Surrogate that the "testator, at the time of executing' the will, was in all resped» competent to make a will and not under restraint; but where it appears that the will was duly executed as required by the Statute (2 R. S. 63, § 40), there is sufficient before the surrogate, to justify him in determining that the testator was' competent to make a Will, and not under restraint. In this case there was no evidence to justify a finding that the testatrix had not testamentary, capacity.

In Matter of Ramsdell (20 N. Y. St. Repr. 446) the only subscribing witness who was alive when the will, was offered for probate expressly testified to an interview with the- testatrix concerning the provisions of the will that he prepared at her request, and stated that from her statements-and conversations and the character of. the instructions given to him for the drawing of the will, he was of the opinion that she was- not of sound mind. That, was the only testimony as to the mental condition of the testatrix when she made the will. In that case, the surrogate refused- to admit" the will" to probate and his decree was affirmed by the General Term of the Supreme Court and by the Court of Appeals (117 N. Y. 636). That casé is nof an authority for holding that where a will is proved to have been executed by a testator who apparently" is able to understand what he is doing, and there is no evidence of any lack of testamentary capacity, the surrogate is bound to reject the will because there was no affirmative evidence, except the circumstances concerning the preparation and- execution of the will, as to the testator’s testamentary capacity. In Matter of Goodwin (95 App. Div. 183) the question as to the testamentary capacity of the testatrix was inquired into and the testimony of á physician and a lawyer was taken as to her condition, and the court held that all the proof on that subject tended to show that the testatrix was not competent to make a will. In Kingsley v. Blanchard (66 Barb. 317) the question was as to the due execution of the will, and the court, after calling attention to the provision of the Revised Statutes then in force which was in substance the same as that of the Code of Civil Procedure, said: Neither of "the witnesses say whether the testatrix was or was not a person of sound mind. The proof of the fact, then, must be derived from the circumstances proved before the surrogate; ” and then, after discussing those facts, the court said: “ It cannot be claimed that from a single intelligent remark or act capacity could be presumed. The wildest maniac may, and sometimes does, utter a sensible remark, or do a sensible act. * * * If the facts above referred to should be held presumptive of capacity, in the absence of any evidence leading to the opposite conclusion, their weight in this case is greatly .weakened, if not entirely overcome, by the evidence as to the condition of the testatrix at the time of the execution of the will.” Then, after discussing that evidence, the court said: While I am not prepared to say that there is not some evidence of capacity in the case, yet I must say that, taking all the facts of the case into consideration, it seems to meto be a proper question to be presented to the jury.” Neither of these cases is an authority for the proposition that the court could not determine from the acts of the testatrix and the circumstances under which the will was executed that she had testamentary capacity and that such a determination should be reversed upon appeal where there was no evidence that" the testatrix had not testamentary capacity.

I think the evidence in this case is sufficient to justify the admission of the will to probate and that the decree should be affirmed.

Decree reversed and tidal ordered by a jury'as stated in opinion, with costs to appellant to abide event payable out of the estate. Settle order on notice. ... 
      
       See 2 R. S. 58, § 14; Laws of 1837, chap. 460, § 18.—Rep.
     