Morris v. Kniffin , 37 Barb. 336 ( 1861 )

Hogeboom, J.

I do not regard it as an insuperable objection to the valid execution of a will that one of the subscribing witnesses makes Ms mark, instead of writing Ms name. It is still a signing of his name, or subscription, I think, within the meaning of the statute in regard to the . execution of wills. (2 R. S. 63.) It has heen so decided to be:in regard to the execution by the testator, (Chaffee v. Baptist Miss. Conv., 10 Paige, 85; Keeney v. Whitmarsh, 16 Barb. 141;) and the reason of the rule applies equally to the case of subscribing witnesses. Indeed, as to the latter, a mark has been held to be a good subscription. (Mechan v. Rourke, 2 Bradf. 385.) It might render the establishment of the will more difficult, in the case of the death of such a witness; for the difficulty or impossibility of authenticating the marie might detract much from the presumption of due execution which arises from the apparent compliance with the statute, evidenced by the will itself, an attestation clause in due form reciting a compliance with the statute formalities, and the signatures of the testator and the subscribing witnesses in their appropriate place upon the instrument itself. (Remsen v. Brinckerhoff, 26 Wend. 325. Butler v. Benson, 1 Barb. S. C. 538. Lewis v. Lewis, 1 Kern. 224.)

But this is a case where the subscribing witness is living, and was examined at the trial; and although his recollection is very imperfect and fails to make out a due execution of the will, he states nothing inconsistent with the theory of a due execution of it, hut much in its favor. The other evidence in the case, taken in connection with it, leads strongly if not irresistibly to the conclusion that the will was duly executed in all the particulars required by law, namely: 1. That it was subscribed by the testator, or such subscription acknowledged, in the presence of the attesting witnesses. 2. That it was declared or acknowledged by him to the attesting witnesses as his will. 3. That the witnesses signed and attested in the presence and at the request of the testator. (Jauncey v. Thorne, 2 Barb. Ch. R. 40. Nelson v. McGiffert, 3 id. 158. Torry v. Bowen, 15 Barb. 304. Hoysradt v. Kingman, 22 N. Y. Rep. 372.)

When to this is added the legal presumption of the observance of these formalities, which would have been supplied by the evidence of Dodge, and arises from his death and apparently due attestation of the will, I think it presents a case, on the part of the defendant, which would have deservedly commanded great attention if not a favorable verdict at the hands of the jury, if the case had reached them. (Jackson v. LeGrange, 19 John. 386. Nelson v. McGiffort, 3 Barb. Ch. R. 162, 3. Chaffee v. Baptist Miss. Conv. 10 Paige, 90. Scribner v. Crane, 2 id. 149. Brinckerhoof v. Remsen, 8 id. 499.)

It seems to me to have been manifestly a case proper to be submitted to the jury, and fit for their consideration.

The doubt which has embarrassed me in the case is, whether the judge was not made the primary and, for the purposes of the admissibility of the will, the exclusive judge in regard to it; and whether, if he decided to exclude it upon evidence susceptible of a construction favorable to his decision, it was not conclusive. But it seems to me, on the whole, one of those cases where the judge should, for the purpose of presenting the question of due execution to the jury, have permitted the paper to be read in evidence or read before the jury, and then submitted the question of due execution to them upon the facts in the case. And such, I think, although it is not very clearly expressed, was the intention, and should be construed to have been the offer and demand of the defendant. When he offered the will in evidence—not as conclusive evidence—not to preclude the consideration by the jury of the question of its due execution—not to submit that question absolutely to the ¡^residing judge—but to read the same in evidence like a note, or any other paper whose authenticity is questioned, but as to which competent and prima facie evidence of execution had been given, for the purpose of laying the same before the jury upon the whole case, so that from the paper itself which furnished on its face some evidence of due execution, in' connection with, the residué of the testimony, they might draw the appropriate inferences on the questions of fact connected with the execution.

[Albany General Term, December 2, 1861.

In 2 Phil. Ev. 503, note, (Albany ed. of 1859,) it is said, “If there he no evidence of authenticity, the instrument cannot be read to the jury; but if there be any fact or circumstance tending to prove the authenticity, from which it might be presumed, then the instrument is to be read to the jury, and the question, like other matters of fact, is for their decision. (Per Duncan, J. delivering the opinion of the court in Sigfried v. Levan, 6 Serg. &. Rawle, 308, 312. Dodge v. Bank of Kentucky, 2 Marsh. Ky. Rep. 613. Curtis v. Hall, 1 South. R. 148. Stahl v. Berger, 10 Serg. & Rawle, 170. Pigott v. Halloway, 1 Binn. Rep. 442, 3. The President, Managers and Company of the Berks and Dauphin Turnpike Road v. Myers, 4 Serg. & Rawle, 12.)”

I think a new trial'should be granted, with costs to abide the event.

Peckham, J. concurred.

Gould, J.

I am very willing that this course should be taken; though I doubt its correctness.

New trial granted.

Gould, Eogeboom and Peckhcm, Justices.]