Rutherford v. Rutherford , 1 Denio 33 ( 1845 )

Pee. Curiam.

The question as to the execution of this will depends upon the validity of the attestation of one of the witnesses. The statute requires that both should subscribe the will at the request of the testator. Henry swears that the testator personally requested J. H. Rutherford to sign the will, but the latter declares that the testator said nothing whatever to him. The plaintiff offered to show by another person that when the will was attested the testator was silent. Perhaps the jury might have found, had there been no difficulty respecting the other requisites to the due execution of the will, that the sending for J. H. Rutherford to be a witness, by the testator, and the request made by Henry in the testator’s presence was in effect a request by the testator, but the plaintiff had a right to establish the fact that there was no personal request made by the testator after J. H. Rutherford came into the room, so that it should depend wholly upon the constructive request, and then to have had the question submitted to the jury. For this cause alone the nonsuit must be set aside. But there are other difficulties in the case. The testator is required to declare in the presence of the attesting witnesses that the instrument is his last will and testament. If it should be conceded that such a declaration would be sufficient if made by another person in the testator’s presence and hearing, the information should be distinct and unequivocal. Here both the witnesses testify that the words were that the paper was the testator’s “will or agreement.” This is too indefinite. Again, the testator must sign in the presence of both of the witnesses, or must acknowledge his signature in their presence. In this case, as to the witness Rutherford, he did neither, and this seems to be a fatal defect in the execution of the paper.^(a)

Nonsuit set aside, and new trial granted.

(a) In Chaffee v. The Baptist Missionary Convention, 10 Paige's R. 85, where the testatrix’s name, in the hand-writing of another person, had been subscribed to the will before the attesting witnesses were called ip, but she distinctly declared to them both, that the paper was her last will and testament, it was notwithstanding held by the chancellor not to have been legally executed, for the want of its being signed by the testatrix, or having the testatrix’s signature acknowledged by her in their presence.