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Surrogate's Court.-Last Will and Testament of Thomas Lewis.
The statute Victoria 1 requires that the signature should be acknowledged by the testator. Our statute says that the subscription must be acknowledged, and that too as a separate and distinct act from the declaration that it is a will.
If, under the English Act, which requires no publication, a declaration that it was the will of the testator, was insufficient as an acknowledgment of his signature, for a much stronger reason would the same declaration be insufficient, under our statute, which requires a declaration that it is the will of the testator, in addition to the acknowledgment of his subscription. Under our statute the declaration might be taken, or intended for a publication. While under the English statute it could not be taken, or intended for anything, unless it was as an acknowledgment of the signature.
I have examined the authorities in England cited by the counsel for the widow and executors so far as I have had an opportunity to do so. The most of those cases, however, are decisions upon the statute of Frauds of Charles II., and are mainly inapplicable to the cases arising under our revised statutes and under the statute of Victoria I.
Each case decided in our own courts has, to a considerable extent, rested upon its own circumstances; some general principles have indeed been laid down and considered as established, but no case has been reported which presents the question whether an acknowledgment of the subscription of the testator, can be made to the witnesses without their seeing the signature, and whether a declaration that the paper is his free will and deed, without exhibiting the signature, is a good acknowledgment. We are therefore left to determine this case upon its own circumstances, upon the statute, and upon general principles fairly applicable thereto.
With a desire to satisfy myself if possible, that the provisions of the statute, in reference to the acknowledgment of the subscription by the testator, have been substantially complied with in this case, I have examined with some care all the authorities referred to by the counsel on argument, and which I have been able to find on this subject, and yet I am compelled to the conclusion, if the testimony of the witness, Tripp, is to be believed, that there is no proof in this case, that the will was signed by the testator in the presence of the witnesses, aud that there is not sufficient proof that the testator acknowledged such subscription to have been made by him to the witnesses.
But it is said by counsel for the executors and widow, that the testimony of the witness, Tripp, should be rejected as unworthy of belief; that the will having been prepared by the deceased, and signed by him and the witnesses with an attestation clause, showing a compliance with all the requirements of the statute, the will must be presumed to have been properly executed in the absence of any affirmative proof to the contrary. It is a sufficient answer to this view of the case, that I do not consider the testimony of that witness as unworthy of belief. If, however, I did, I do not understand the authorities cited by the counsel for the widow and executors, to hold that a will drawn by the testator, and signed by him and the witnesses, with a proper attestation clause, also drawn by the testator,
Surrogate's Court.-Last Will and Testament of Thomas Lewis,
made but two years before the will is offered for probate, where both the witnesses are living in this state, fully competent to testify, and are called as witnesses and examined, but cannot recollect anything that was done on the occasion, except that they signed their names as witnesses, can be sustained upon the negative testimony of the want of recollection of the witnesses.
In the case of Chaffee v. The Baptist Missionary Convention, the Chancellor says in effect, that a proper attestation clause, showing that all the statute formalities have been complied with, is presumptive evidence of the fact in case of the death of the witnesses, or where from lapse of time they cannot recollect what did take place.
In the case of Remsen v. Brinkerhoff, 26 Wen., 325, Senator Verplanck, does indeed say that the proved or acknowledged signatures of witnesses to a will, bearing above their names an attestation of the requirements of the statute, would be good presumptive evidence of an actual compliance with such requirements. But the presumption in that case was rebutted by the testimony of the subscribing witness, that they did not read the declaratory clause.. In the case under consideration the attestation clause was not read, and therefore there could be no presumption in favor of the acknowledgment of the signatures arising from that clause.
It is to be remarked in this connection, that the circumstance, that the testator, Mr. Lewis, requested the witnesses to sign their names, with their places of residence, is but very slight evidence that he himself knew all the requirements of the statute. See the marginal note to the case of Remsen v. Brinkerhoff, 25 Wen., 325.
It is also further to be noticed, that in the case of Chaffee v. The Baptist Missionary Convention,, 10 Paige, 85, where the testator at the time of the execution of the will, in presence of the witnesses, placed his finger on his name subscribed at the end of the will, and acknowledged that it was his last will and testament, but there was no evidence that he subscribed it in the presence of the attesting witnesses, or that he acknowledged in their presence that such subscription was made by him, or by his direction, or in his presence; it was held by the court that this was not a sufficient acknowledgment of the subscription.
It is not necessary, in the view which I take of this case, to determine whether the publication of this will was sufficient. In my opinion there is not sufficient proof that the subscription of the testator to this will was made in the presence of the witnesses, nor that such subscription was acknowledged to have been so made by him to the witnesses.
My decision, therefore, is, that the instrument offered for probate as the last will and testament of Thomas Lewis, deceased, for want of proper execution, is not a valid will of real or personal property.
REPORTS OF Cases argued and determineD IN THE SUPErior Court of the CITY OF NEW-YORK. By the Hon. Lewis H. Sandford, one of the Justices of the Court. Vol. II. NEW-YORK. Banks, Gould & Co., 144 Nassau street. ALBANY, Gould, Banks & Gould, 475 Broadway. 1851.
These reports are a very valuable addition to the reported judicial decisions of the State of New York. For some reason or other THE Superior Court OF THE CITY OF NEW YORK has always maintained a high and well deserved celebrity for the profoundness and accuracy of its adjudications, and with most of the profession in the City of New York has been a favorite tribunal. The profound legal wisdom which has characterized some members of the Court, and the courtesy and urbanity towards the profession in which others have been pre-eminent, have together rendered it so popular as to make it preferred by a large number of the profession to any other where the jurisdiction was co-ordinate. Time has brought changes in the mode of administering justice in this Court, and the hands that dispense it have been changed and multiplied, but with no detriment to its popularity so far as we have been enabled to observe.
It has always been matter of serious regret to us that the valuable adjudications of this distinguished Court are almost wholly lost to the profession for nearly twenty years, for want of a reporter. We are not aware of any other than the present, except the two volumes published by Mr. J. Prescott Hall, in 1831 and 1833, containing decisions from August Term 1828, to December 1829, and the first volume of this series published by Mr. Justice Sandford, in 1849, beginning with cases decided in October Term, 1847. We well recollect the confident and almost scolding manner in which we inquired, some years since, of the Librarian of "The New-York Law Institute," for EVART'S N. Y. SUPERIOR COURT REPORTS, and the deep chagrin that overcame us upon being informed that the official Reporter of the Court had not yet announced to the profession or the public when or where these mythical volumes might be procured. The same uncertainty, we believe, still prevails.
We are then heartily rejoiced that one of the ablest of this renowned bench, appreciating the demand for the publication of its adjudications, has taken upon himself, at no inconsiderable addition to his already weighty judicial labors, to give these decisions to the world. As an accurate, careful, and judicious reporter, he has equalled his already brilliant and wide spread judicial reputation. There seems a peculiar propriety now that the jurisdiction of this Court has been made to embrace both law and equity, that these reports should come forth under the fostering hand of one who had already achieved a reputation for distinguished judicial ability, in each.
Upon opening this volume and glancing at the names of the Justices at present composing it, and the name of one no longer of its brotherhood-a pang went to our heart like a burning arrow.
The Hon. AARON
was the sudden recollection of a forgotten sorrow. J. VANDERPOEL-clarum et venerabile nomen-is no longer a member of this Court. An elective judiciary and a turn in the wheel of political fortune has displaced as honest and upright a judge as ever sat upon any bench in the world. His was the first judicial face that unbent its stern brows to speak kindly to us when we came tremblingly to the bar, and we shall never forget his urbanity and goodness of heart.
We read the first volume of these reports with pleasure and instruction, and looked eagerly forward for this second volume. We find in this book several very important and able judgments, and feel assured that the profession will be doubly grateful for the satisfactory manner in which they are reported. We find here the first report of a case which to the New-York Bar has already become a bye-word. We refer to Oakley vs. Aspinwall-a case that has performed so many remarkable antics that it bids fair to rival the world renowned Peebles vs. Planestane. The case of Keutgen v. Parks (p. 60) is an important adjudication upon the point of good faith in acquiring title to commercial paper. In this case an agent of the plaintiffs was entrusted with a promissory note belonging to them, to procure it discounted. The agent pledged it with a stranger for money loaned to him for his own use at usurious interest. Upon this the learned Reporter, who himself tried this cause (664) remarks:
"On the merits of the case, the defendant claims protection as a purchaser of the note in good faith for value. It is not alleged on the other side, that he had any notice of the fact that R. was an agent and not the owner of the note; but it is insisted that the defendant received the note as security for an usurious loan, and that having taken it on a contract made in violation of the law, it was not received by him in good faith. This is a point of some moment, in the law of commercial paper. It will be observed that there was no sale of this note to the defendant. If there had been a sale, there would have been no difficulty. It is undoubtedly true, that the defence of usury is in general personal to the party paying or contracting to pay it. But the principle is not precisely applicable to this case. Here the defendant sets up against the true owner of a note the great doctrine of the law merchant, that the holder of a negotiable bill or note, who has received it in good faith for value, before its maturity, may retain it against the whole world. Now the good faith is a vital element of this doctrine. And can that be said to have been done in good faith or in the usual course of trade, which is done contrary to the positive prohibition of a statute, and which statute declares to be void? We are satisfied that it cannot." The case of Smith vs. Oliphant and wife (p. 306) will be regarded with interest as settling a much mooted point as to how far an infant is liable for money lent. The learned judge carries the doctrine to the full length intimated in Randall vs. Sweet (1 Denio, 460) that an infant is liable for money lent for the purchase of necessaries for the infant when so applied under the direction of the lender.
We cannot refer to the case of Palmer vs. Wetmore (p. 316) with the same hearty approbation or satisfaction. In this case it is held
Review The American Chancery Digest.
that "A landlord who owns land adjoining the demised premises, has a right to build on such land though he may thereby obstruct and darken the windows in the tenement demised." Inasmuch as this case overturns the settled English law as adjudicated over and over again from the reign of Edward III. to the most recent date; and is also diametrically opposite to the decisions upon the same point in the States of Massachusetts, New Jersey and South Carolina, and whereever else the question has arisen: and as the adverse doctrine to that here laid down had already been indirectly approved in the only two cases where the question has arisen in this State, by two of the ablest judicial minds that have ever adorned its bench; the leading case on this question in Massachusetts (Story vs. Odin, 12 Mass. 157) having been cited without dissent by C. J. BRONSON, in Parker v. Foote (19 Wendall R. 309) and by Chancellor WALWORTH in Lasalla v. Holbrook (4 Paige R. 173): these things being so and this being the pioneer case of a new doctrine in the civilized world, we should have been more gratified if the learned chief Justice had not seen fit to dispose of the matter in about twenty lines without a single reason and without reference to a single authority. But we must close this notice already too long-with the single remark that the points of important commercial law discussed and settled in this volume render it a book worthy of a place in the library of every intelligent merchant in this metropolis.
THE AMERICAN CHANCERY DIGEST; being an Analytical Digested Index of all the Reported Decisions in Equity of the United States Courts, aud of the Courts of the several States to the Present Time, with Notes and a copious Index; also, an Introductory Essay, comprising an Historical Sketch of the Court of Chancery; an Account of the Nature, Powers and Functions of the Court; and the Organization and Equity Jurisdiction of the Courts of the United States, and of each of the States of the Union. By THOMAS W. WATERMAN, of the New-York Bar. Third Edition, in Three Volumes. NEW-YORK: BANKS, GOULD & Co. ALBANY GOULD, BANKS & GOULD, 475 Broadway. 1851.
This is a most valuable work, and we confess we do not see how the practical lawyer can dispense with it. It contains a law library in itself. We had intended to enter into an examination of the able way in which it has been prepared, but want of space, we regret to say, prevents our doing so. We cannot, perhaps, do better than let the author speak for himself.
In his preface, the author observes:
"The value of this Digest is enhanced by the fact of its being a national work-confined to no one State or section, but comprehending each and every State, and the entire country as a whole. Containing all the reported decisions in equity of the United States Courts, and of the courts of the several States of the Union, from the earliest period to the present time; it embodies almost every known principle of American law, and hence becomes a complete encyclopædia of American legal science.
"It was originally placed in the hands of the late John A. Dunlap, Esq., well known to the profession for his learning and ccouno arr