Brady v. McCrosson , 5 Redf. 431 ( 1881 )

The Surrogate.

The contestant, Mrs. Brady, a daughter of the deceased, objects, first, that the will was not properly executed, inasmuch as McNamara was not, at the time of the execution of the alleged will, requested to sign it as a subscribing witness. I do not regard the objection as of any force. He had been previously requested by the testator to witness his will, to be drawn ; he was present at the time it was prepared, heard it read, heard the other witness requested to sign, and signed himself in the presence of the deceased. This I think a stronger case than that of Coffin v. Coffin (23 N. Y., 9).

The second objection is that, because the clause appointing the wife executrix was not signed by the witnesses, therefore the alleged will is void as such. Neither do I deem this objection well taken. The cases cited by the contestant’s counsel, to wit, Sisters of Charity v. Kelly (67 N. Y., 415); McGuire v. Kerr (2 Bradf., 257); and Heady’s Will (15 Abb. N. S., 211); as well as Conboy v. Jennings (1 S, C. [T. & C.], 622), cited by proponent’s counsel, each presents a state of facts materially different from that existing in this case. Here, the will was understandingly completed, and the deceased assented to its correctly expressing his wishes, before it was executed. Then, as an afterthought, the matter of the appointment of an executor arose. If the appointment of the executor had not suggested itself to the mind of the deceased until a week or a month had elapsed, and he had then executed such an unattested writing as this, no one, I think, would claim that thereby the previously duly executed will was rendered void. If this be so, then it strikes me that, if done within a day, or an hour, or any shorter period, it would be equally harmless to destroy it.

It was the ancient rule that no paper in the nature of a will would be valid as such unless it contained the appointment of an executor, but such long since ceased to be the law. The statute makes provision for the appointment of an administrator with the will annexed, where no executor is named in the will. I think the will properly executed as such, and that it should be admitted to probate.

Decreed accordingly.