New-York tribune., 1873-02-11
MR.. GREELEY'S WILLS.
SURROGATE CoFFINs DECISION.
THE WILL OF 1871 ADMITTED TO PROBATE.

1871 10 probate The decision will be found below In fu;
THE DECISION.
Ia the matter Of proring the last VM and testament OF
HORACE GREELEY, deceased.
The Surrogate the alleged will OF 1872 being pre-
sented for probate Messrs. samuel Sinclair Charles
storrs and Richard II. Manning. being the executors
named in an earlier alleged will OF the decedent bearing
date Jan o. 1871, appeared and propounded the latter
will and claimed that the will OF 1872 void for lack
of tesamentary capacity The cases thus became con-
solidated and the question to be determined which
WAS the last will and The prOponent Of the last
will and testament Of 1872 caused the subscribing wit
nesses that will to be examined and made out prima
Tace case for is establishment The contestants then
proceeded with evidence tending to show that the de-
cedent not at the time Of its execution, capable OF
making a will by reason Of unsoundness OF mind.
AT early stage in the progress Of the case and after
releases had been executed by all of the egatees and
devsees named In the will Of 1871 the children Of
the deceased and the Chdrens Aid Society aud, after
Miss Greeley had executed and delivered TO her Younger
conveyance OF equal half part of all the
property claimed to have been disposed Of by the will Of
1872 the counsel of Miss Greeley and those Of her sister
objected that the contestants OF the latter will had no
longer any In Court aud right to contest the
same In this think they wrong. Our statute
r. s. 9Th Ed. 1876 provides that the executor. dev
see legatee named in any last WILL or any person n
teresed in the estate may have the will proved Any
interest however slight and even, II seems, the bare
possibility or interest Is SutlGent 10 person
10 oppose a testamentary paper. civilians on Exc
cutors, 2si DaytOn Surrogate 1853 and 1897 The exc
cutors named the will Of 1871 have clearly by statute
an express right to have that will proved, If they
establish the fact that 1t is tho last will, and
they may rightfully contend against the validity
OF any alleged subsequent will as an obstacle In the way
Of establishing the will under which they claim Their
interest in this regard is very apparent For if they
can succeed in establishing this WILL the title to the
movable goods OF the testator though many
different and distinct places vests in them, in posses
sion, and indeed did so vest presently the tesators
death. Civilians Executors, 50l.) The probate for
letters testamentary Ia merely operative as the unau
thencaed evidence and not at all as the foundation of
the executors title, for be derives all his interest from
the will ITSELF and the property Of the deceased vests in
him the moment of the testator's death Daytons Sur
rogate 2l3 citing Williams Executors, 255l II, how
ever the will of 1872 should be established as the valid
last w the title would be elsewhere Thus, the pro-
pOnent and contestants are trying their alleged titles
Besides the Chdreus Society. named in the will Of
1871 had not reeased.Or abandoned Its legacy and had
right expect the executors TO look after its interests
At the close Of the contest and before exhausng the
evidence the part Of the contestants for alleged rea
sons mmateria tue decision of the case the counsel
for the pr0ponent stated that under written instructions
from his Chn and sanctioned by her sister any further
effort TO establish the will OF 1872 abandoned that
they withdrew from the controversy and he ntmated
willingness that the will of 1871 should be admitted to
probate The counsel FOR the guardian Gd iem did not
dissent from this suggestion ThereupOn the executors
produced the usual formal proof OF the execution OF the
will Of 1871 appedtor letters testamentary thereon
1t seemed considered by OF the counsel that
thus the Will Of 1872 and the testimony and all proceedings
relating to IT, had been withdrawn from this Court but
this apprehend could not be done in this or any case
The statute that every surrogate shall carefully e
and preserve all afdavts' petitions &c % X 81 S6''
Upon proof being made OF he due service Of the cita
examined before him. All such proofs and examna-
tions shall be reduced TO writing Qb 49, Sec J6) Tue
testimony taken by Surrogate in relation to the
proof Of any will shall be reduced TO writing and shall
be entered by him in proper book to De proVdea ana
Sec 5 The Surrogate shall enter in his minutes the de-
cision which ne shall make concerning '0 @ sTSy m yd o
probate, and if he ind against IT, shall state the
ground upon which the decision is made, &c Qb l5O
Sec 69 The Surrogate OF each county shall provide and
keep book In which shall be entered all minutes OF pro-
ceedings &C. Qb. 365, Sec. IS, pl 49,
II will be that the language Of these provisions is
imperative and that the Surrogate has no discretion on
the subject The testimony and proceedings cannot |
therefore withdrawn, but must remain part Of the
records and files OF his Office and decree must DC
made. 1t would however be competent for all parties
beng adults in such stage OF the proceed
ings TO enter into stipulation 20 be entered on the
minutes to authorize the Court 10 make decree ia pn
suance Of the terms Of the stipulation But here thls
difficulty in regard to any such adjustment Is encoun
neither the guardian ad Item or his counsel make
any admissions affecting uniayora6y the interests OF
the infant This Is wellestaDlshed rule (James ag
James Paige l15 Bukley agt. Van Wycke, io' 1885,
Stephenson gt.
Of Moore agt Moore q sahdi0Iu' on: zap oI !
the ice-ChanceOr ordered the testimony OF |
objection OF his guardian ad Item to be stricken out
Perhaps the furthest the cons nave in sancOhS
the act Of the guardian dd Item in declining contest IN
relation TO the infants rights is the case OF Levy agt
Levy e Mad. Rep, 245 but that case clearly has no
ary works the subject, indicate the tender sohcude
with which all courts guard and protect the rights and
interests Of those whom the law considers as incapable
Of managing their own affairs. ,,,
The consent if such 1t may be considered OF me cOun
60 tF,a
allow the viii OF 1871 to be admitted 70 probate would be
TO ah aS asi "y viii M and Testament Of
the decedent purpOrtng to give larger interest ln ms
estate no ms children than the will of 1871 is not in fact
the last will, and ought 10 be refused probate. .
Thus, il being mpracticabe as have endeayored 70
show TO withdraw the proceedings relating TO the will
OF 1872 and equally impossible TO accept or consider any
such admission that may have been made by or IN behalf
OF the infant, it would seem to remain my duty 70 con
to decide upon the testimony which shall be admitted
and which rejected IN doing So ts Iact rs
encountered the outset, that the testimony on ee
side is incomplete ana IA 50 d as ue W @ O
1872 concerned In the midst OF the evidence On the
par of the contestants counsel for proponen ana Tor
the infant announced their withdrawal from the contest
pursuant 10 the request Ol thOse whom lneS
and propoueurs counsel sgnihed his Willingness 10 al
low the Will of 1871 10 be admitted to probate 10 TINS
course no objection seems 70 DC lnaue lo Co.ot Ioi
appear therefore 70 have assumed tDat no
matter was IN this somewhat anomalous condition, and
argument by the learned counsel lett 10 the
In every case a testator is presumed TO be sane To
this presumption usually superadded the testimony OF
snbseriong witnesses, generally non-experts 10 the
effect that they considered the estatOr TO be OF sound
and disposing mind and memory Here the subscribing
witnesses testified a compliance with the usual formal
ites by "A person whom they considered OF sound ana
disnosiug mind and memory ThereupOn, and without
regard facts circumstances occurring at any
Other place than the scene OF the execution the
ronouent was held to have made prima facie
and the burden Of proof was thrown upon the contest
ants establish the fact, they could, that some or
more OF these fOrmates had not been compiled with,
or that the testatOr incapable OF making Will by
uDsoundness of mind They sought 10 assert
s validity ON the latter ground. II perhaps unneces
sary % detail with any degree OF minuteness |
allurel with |