Hunn v. Case , 1 Redf. 307 ( 1859 )

The Surrogate. — It is not the policy of the statute, in prescribing rules for the making and publication of wills, to discourage testamentary dispositions of property. Its only object is to guard against fraudulent practices and impositions. Nevertheless, in applying and weighing the evidence, it is the duty of courts to require that the rules established by the Legislature be substantially complied with. From the nature of the subject, it is not to be expected that precisely parallel cases will often occur, so as to establish uniform precedents in all respects. Nor does the statute confine the publication to any prescribed words or forms of speech. Unlimited latitude of expression may be used, if it convey the proper meaning. And that expression may be made orally, or in writing, or by signs, where there is occasion to use them, provided that the general sense and design of the enactment be complied with. Neither is it necessary that all the facts to he made out should be established by the evidence of both the subscribing witnesses, notwithstanding that the statute requires two to insure the validity of the instrument, as a will of real estate. The testimony of one, uncontradicted, in the absence of all suspicious circumstances, is sufficient of the fact to be proved.

In the present case, the first and fourth requirements of the statute in the execution of a will, are distinctly and unequivocally established. The second requirement is not so positively proved. The first subscribing witness called, establishes the fact that the testator signed the will in his presence," but is not certain that the other subscribing witness was present, though he thinks he was. The fact that Gooding, the other subscribing witness, was present when the testator signed, is further strengthened by the circumstance that the will was read in his presence (instruments being usually read preparatory to signing); and by the declaration of the attestation clause, which the witnesses both signed by the testator’s request.

The third requirement of the statute is still less distinctly proved by the witnesses. Tíeither distinctly recollects hearing the testator declare the instrument to be his will, although one of them, Jones, had an impression that he did so. Both of the witnesses, however, testify that the instrument was read in their hearing, and in the presence of the testator, containing the declaration that it was his will. And his recognition of it was manifested by his requesting the persons to subscribe as witnesses. The business habits of the witness, who drew the will, his general intelligence upon a subject in which he was frequently called upon to act, lend weight to the belief that the will was properly executed, while there is no circumstance or expression used by any one of the eighteen or twenty witnesses sworn, to discredit it, or excite the least suspicion that any informality was omitted or any unfairness meditated.

But it was testified to by several of the witnesses sworn, that the testator had recurred to the making of his will after-wards. It was not the case of a sick or superannuated old man, liable to be controlled or imposed upon by others, hut a man whose faculties were unimpaired further than was natural at his age, which at that time was less than seventy years. Under these facts, proofs, and circumstances, the will is held to be properly executed, and is ordered to he recorded.