Opinion
November Term, 1903.
Decree of the Surrogate's Court of Westchester county affirmed, with costs.
The instrument in question is an informal document in the handwriting of the decedent's wife and reads as follows:
"75th Ave. "New Rochelle. "March 26th, 1902.
"This is my last will and testament. I do hereby give to my wife Catherine Burns everything I possess Money Jewelry stocks, real estate and Bonds Everything.
"JAMES BURNS.
"Witnesses: "NELLIE HAYDEN. "EDWARD CRUDDEN."
Edward Burns, a brother of the deceased filed objections to the probate, that the paper was not signed, published and declared by the testator in the manner prescribed by law, that the decedent was not of sound mind and that the execution of the instrument was obtained by the fraud, circumvention and undue influence of Catherine Burns, the beneficiary named therein. As to the last two objections there is no evidence whatever in the record to sustain either of them. The only question before us is whether the instrument was executed in accordance with law as the last will of the deceased. James left no children. He had been sick for seven months with heart disease and dropsy, and under the care of Edward Crudden, a professional nurse and one of the subscribing witnesses. James told Crudden to call Nellie Hayden, the other subscribing witness, and she went to the room where James was sick in bed. He signed the instrument in her presence, declared to her that it was his will and asked her to sign it as his will, which she did. He then told her to call Crudden. He asked Crudden "to sign this last Will that he made." Crudden read the instrument and signed as a witness. There is some evidence of an affidavit made by Crudden which is somewhat inconsistent with his evidence before the surrogate, but the learned surrogate has found as matter of fact that the testator signed the will in the presence of Nellie Hayden and acknowledged his signature to Crudden, declared to both that it was his will and that the two at his request signed as subscribing witnesses. This evidence justified the finding of the learned surrogate in admitting the will to probate. The decree should be affirmed, with costs to the respondent, and with costs and disbursements to the special guardian. Bartlett, Woodward, Jenks and Hooker, JJ., concurrd.