Sisters of Charity of St. Vincent De Paul v. Kelly
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a decree of the surrogate of the county of New York, which adjudged that an instrument presented for probate as the last will and testament of John Kelly, deceased, was not properly executed and attested, and refused to admit the same to probate, and remitting the proceedings to said surrogate, with instructions to admit the same to probate.
Read the full summary
Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a decree of the surrogate of the county of New York, which adjudged that an instrument presented for probate as the last will and testament of John Kelly, deceased, was not properly executed and attested, and refused to admit the same to probate, and remitting the proceedings to said surrogate, with instructions to admit the same to probate. (Reported below, /T Hun, 290.) Of the last clause of the instrument, so presented for pro-' bate, and the attestation clause, the following is a copy,…
1Opinion of the CourtFolger, J.
It is clearly proven, that the witnesses to the instrument saw no act of signing it, by the deceased, until after they had signed their own names to it.
It is the law of this State that a subscription of a will by a testator, after the witnesses have signed their names to it, is not a due execution of it by him. (Jackson v. Jackson, 39 N. Y., 153.)
But it is not a requisite that he should subscribe the will in their presence. If he has subscribed his name in the proper place before they are called in, and then acknowledges to them such subscription to have been made by him, it is, so far, an…
2Cases cited6 opinions
- Jackson v. . JacksonNew York Court of Appeals · 1868
- Chaffee v. Baptist Missionary ConventionNew York Court of Chancery · 1843
- Lewis v. . LewisNew York Court of Appeals · 1854
- Baskin v. . BaskinNew York Court of Appeals · 1867
- Willis v. . MottNew York Court of Appeals · 1867
1 more not listed; retrieve them via the Exa API.
3Cited by71 opinions
- In Re the Probate of the Will of O'NeilNew York Court of Appeals · 1883
- In Re the Probate of the Last Will & Testament of AndrewsNew York Court of Appeals · 1900
- In Re Proving the Last Will & Testament of ConwayNew York Court of Appeals · 1891
- Albright v. NorthCalifornia Supreme Court · 1905
- In re Blair's WillNew York Supreme Court · 1895
66 more not listed; retrieve them via the Exa API.