Appeal of Jarboe

• Decision Date: 05 January 1917
• Citation: 91 Conn. 265,99 A. 563
• Court: Connecticut Supreme Court
• Parties: Appeal of JARBOE et al.

99 A. 563

91 Conn. 265

Appeal of JARBOE et al.

Supreme Court of Errors of Connecticut.

Jan. 5, 1917.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Proceedings in the matter of probate of the will of Alexander Mackey. From a decree of the superior court on appeal from the court of probate, admitting the will to probate, George W. Jarboe and another appeal. No error.

On the trial to the jury the following facts were in evidence. Alexander Mackey, the testator, married Josephine, named in the will as sole beneficiary, about 1858. In 1860, when the will was executed, the testator was in business in New York City and had his residence there. The will, although dated as to time, is not dated as to place, and it does not appear from any express recital therein whether it was executed in New York state or not. It is, however, attested by two witnesses described as residents of New York City, and it contains an attestation clause in the form required by the law of New York, to the effect that the will was subscribed by the testator, and by him declared to be his last will in the presence of the two witnesses, each of whom signed his name as witness at the request of the testator and in his presence and in the presence of each other. R. L. Larramore, one of the witnesses, died in 1893, and at the date of the will was practicing law in New York City with John M. Cooper, the other apparent witness to the will. The signature of the will by the testator and of the attestation clause by the witness Larramore were proved, but the signature of Cooper was not identified, and there was no evidence to show whether he was dead or alive at the time of the trial, except that he was of middle age or elderly in 1860. The testator moved to Darien in this state about 1884, and died there in 1900. His widow, Josephine, died in Darien in 1915, and the will of Alexander was found among her papers by her executor and offered for probate. The reason for the delay in probating the will did not appear. The reasons of appeal relate wholly to alleged errors in the admission of evidence.

Morris Douw Ferris, of New York City, and Nathaniel E. Bronson, of Waterbury, for appellants. John J. Cullinan, Jr., of Bridgeport, for appellee.

BEACH, J. (after stating the facts as above). As the will was attested by two * witnesses only it was not admissible to probate unless executed in some other state and in accordance with the law of that state; and the pivotal question of fact on the trial was whether it was executed in New York. Ordinarily a will purports to be executed at a place named therein, and if that were not so, there would generally be a surviving witness able to locate the place of its execution. But in this case the will itself does not name the place of execution, one of the witnesses is dead, and the failure to produce the other witness is sufficiently accounted for by the date of the execution of the document.

Under these circumstances the proponents of the will were entitled to resort to indirect evidence of the place of its execution, to the admission of which the appellants excepted. In so far as the assignments of error are pursued on the brief they relate to the admission of the testimony of a member of the New York Bar as to the law of New York, and to the admission in evidence of the document purporting to be the will of the testator.

The testimony objected to consisted of the reading of the statutes of New York governing the execution of wills in 1860, and the objection was that proof of the law of New York was inapplicable to the document in question until the fact of its execution in New York state was in evidence. Without discussing the legal merits of this objection we regard it as inappropriate to the case presented by this record, because it erroneously assumes that no evidence was offered to show that the will was executed in New York.

It must be admitted, of course, that at some stage of the trial the proponents of the will were bound to offer some competent evidence that the will was executed in New York, yet they were not bound to follow any particular order of proof or to go any further than to produce evidence from which the jury might reasonably infer that the will was, more probably than not, executed in New York. The verdict of the jury shows that the appellees did offer such evidence, for it necessarily imports a finding that the will was executed in New York, and as...