In re the Probate of the last Will & Testament of Burke
New York Surrogate's Court
The contestants objected to the probate, particularly because;—1. Of alleged undue influence exercised by the two subscribing witnesses to the will; 2. The incapacity of the testatrix; and 3. The following defects urged in respect to the mode of execution. First: That the testatrix did not subscribe the will. Second : That she did not declare it to be her will. Tim'd: That she did not request the witnesses to subscribe their names as such.
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The contestants objected to the probate, particularly because;—1. Of alleged undue influence exercised by the two subscribing witnesses to the will; 2. The incapacity of the testatrix; and 3. The following defects urged in respect to the mode of execution. First: That the testatrix did not subscribe the will. Second : That she did not declare it to be her will. Tim'd: That she did not request the witnesses to subscribe their names as such. As evidence of want of capacity, the proof showed, that the testatrix was suffering from the effects of poison which affected her throat, and rendered her…
1Opinion of the Court
The Surrogate.
Though the will in this case is very informal, yet it seems to me, it has been executed in substantial conformity to the requirements of the statute.
In Campbell v. Logan (2 Bradf., 98,) it is substantially held that where a testatrix desired a former will. to be altered, and a new will was drawn, and it was read to the testatrix and was signed by her, she holding the pen, and another party guiding it for her; she stating that the writing was sufficient, and asking the witnesses to sign the writing, though the witnesses could not remember that she declared it to be her last will,…
2Cases cited6 opinions
- Jackson v. . JacksonNew York Court of Appeals · 1868
- Gardiner v. GardinerNew York Court of Appeals · 1865
- Blanchard v. NestleNew York Supreme Court · 1846
- Campbell v. LoganNew York Surrogate's Court · 1852
- Vaughan v. BurfordNew York Surrogate's Court · 1854
1 more not listed; retrieve them via the Exa API.
3Cited by4 opinions
- In re the Will of DeHartNew York Surrogate's Court · 1910
- Mairs v. FreemanNew York Surrogate's Court · 1877
- Von Hoffman v. WardNew York Surrogate's Court · 1880
- In re Proving the Instrument Propounded for Probate, as & for the Last Will & Testament of MooreNew York Surrogate's Court · 1905