Hutchings vs. Cochrane. In the matter of proving the Will of Emma J. Cochrane, 2 Brad. 295

The Surrogate. The probate of this will is contested by the sister and brothers of the deceased, on the grounds of informal execution, weakness of capacity, and undue influence. The will was prepared by Mr. Barrett, by the direction of the decedent, and, when engrossed, was transmitted to her for execution, by the hands of Mr. Sparks and Mr. Barrett’s nephew, who attended at Miss Cochrane’s residence for the purpose of becoming attesting witnesses. Mr. Sparks states that the instrument was enclosed in an envelope—was first handed her to read—she opened and read it.

He then asked her if she understood the contents, and she replied in the affirmative. He requested her to sign it, and when she had done so, asked her “ if that was her signature for the purpose-?” and if “ that was her last will and testament?” “She said, Tes and the witness then signed his name, in the presence of Miss Cochrane, and at the table by which she was sitting. He further testified, that Miss Cochrane did not, to his recollection, ask him to become a witness, and he did not ask her whether he should.

He says, however, “ When I came there, I think I told her, after she had opened the envelope, that I came there to take an affidavit, and to witness her signing her will, or to take an acknowledgment that that was her will, or words to that import. I said nothing about George, why he came. I don’t think George said anything to her, or she to him. After I stated what I came for, she first sat down, signed and swore to the affidavit, and then took up the will and read it; and after that the will was executed, as I have stated before. I think I told her it was necessary to have two witnesses.

I don’t know that she said anything to that.” George C. Barrett, the other witness, a lad between 14 and 15 years of age, proves the signature of the testatrix; Hr. Sparks’ inquiry if she acknowledged the instrument to be her last will and testament; her answer thereto, by nodding her head, or saying yes; and the subscription of the witnesses in her presence. He says, “I think that after she signed and Hr.

Sparks signed, I put my name, without her asking me, or I asking her, as if it was taken for granted. * * * I don’t remember that anything was said regarding the necessary number of witnesses.” The will was engrossed by this witness, and the name of Hrs. Thomson having been left blank in consequence of uncertainty as to the mode of spelling it, he filled the blank at the time of execution, on ascertaining from Hiss Cochrane how the name should be inserted.

It appears from this proof, that there was full knowledge, on the part of the testatrix and the witnesses, as to the character of the transaction then performed. She read the instrument, had a blank filled in, signed it, replied in the affirmative to the question of Hr. Sparks, whether she acknowledged it to be her last will and testament, saw the witnesses attest it, and then took the paper into her own custody. Besides all this, Hr. Sparks thinks, when he first saw her and handed her the envelope, after she had opened it, he told her he had come to witness her will, or take the acknowledgment of her will.

He thinks also that he told her it was necessary to have two witnesses. There is no proof that Hiss Cochrane expressly requested the witnesses to attest the instrument, or that they expressly asked her whether they should become witnesses. The evidence is, in fact, the other way. There was no formal express request. But is it necessary the request required by the statute, should be made by word of mouth. Certainly not; the letter of the statute does not define the mode in which the request must "be made. It may be communicated by signs, or may be implied from the acts of the parties.

"When all the circumstances show the design of the testator to execute his will, his knowledge of the character of the instrument, and the purpose for which the witnesses attend, I am clearly of * opinion that his signing the instrument, and acknowledging it to be his will, observing the witnesses sign, and then taking the executed paper into his own possession, without objection or comment, sufficiently establish and imply a request to the attesting witnesses to join in the necessary ■formalities.

The request is contained in the present sanction then given to the act, by the conduct of the testator in signing and making the testamentary declaration, and in the recognition of the attestation, not only by acquiescence, but by taking custody of the paper after execution. Any other construction would be narrow, unreasonably literal and technical, and utterly repugnant to that good sense by which the conduct and actions of men should be judged and interpreted. I think, therefore, that the proof of execution in this case is sufficient.

As to the capacity of the decedent, it is not contended that she was wholly incompetent, and I do not deem it necessary to discuss the proofs bearing on that point.

I feel bound, however, to express the opinion that she was abundantly competent to dispose of her property by will; and a large part of the evidence in the way of opinions unfavorable to the vigor and maturity of her intellect, may very naturally be attributed to her modest, retiring habit, simplicity of character, diffident and taciturn disposition—qualities likely to be fostered by chronic ailments, and the disease to which she ultimately fell a victim. We hardly look for great strength of intellect in a young, delicate and inexperienced girl.

The law does not nicely measure grades of mental vigor, nor brand as incapable one who does not possess a certain degree of talent. The decedent’s mind was sound. There was no derangement, aberration or delusion. She had some education, could read, write, play on the piano; and, in the judgment of such men as her counsel Mr. Barrett, the Rev. Dr. Knox her pastor, and Dr. Hosack her physician, to whom she appears to have opened her mind freely, she was intelligent and perfectly rational.

In regard to undue influence, I find no evidence in the case pointing to such a conclusion; but it is urged that an inference of that kind is to be drawn from the tenor of the will, as compared with a previous will, and from other circumstances thought to. be suspicious. It appears that the decedent came to the determination to leave her property, which was quite moderate in amount, to the lady with whom she had boarded. That she was brought to this result by the suggestion, persuasion or interference of any person whomsoever, is not only without a particle of proof, but is rather negatived by the evidence of Dr.

Hosack and Mr.' Barrett. She gave as reasons for her determination, the kindness of the intended beneficiary, and the unldndness of her relatives. It can serve no good purpose to inquire into the origin or extent of these family differences; for even if I should judge the feelings of the decedent on this point utterly unfounded, which, however, I am far from saying, it would be entirely unwarrantable to assert that her mind had been poisoned by designing and interested persons. To sustain that idea there is no evidence, and fraud is not to be presumed on mere surmise and conj ectures. It is obvious from Mr.

Barrett’s statements, that the will was made, not only on due deliberation, but after the fullest consultation with her legal adviser, and very decided efforts on his part to persuade her to a different disposition. These efforts were resisted, the subject was canvassed, and she remained of the same mind.

Testamentary capacity conceded, every one is the judge of his own acts in respect to his testament; and where the instrument appears to have been executed after ample consideration, and in accordance with the expressed affections of the testator, it would he a very wanton exercise of power to attempt disturbing such a disposition, except upon clear evidence of fraud or imposition.

I am perfectly satisfied that the will expresses the intentions of the decedent, and conforms to her real dispositions and affections ; that she was abundantly competent to dispose of her property; and that the instrument propounded has been proved to have been duly executed as her last will and testament. It is admitted to probate accordingly.