Parley v. Parley

• Decision Date: 20 March 1893
• Citation: 50 N.J.E. 434,26 A. 178
• Parties: PARLEY v. PARLEY et al.
• Court: New Jersey Supreme Court

26 A. 178

50 N.J.E. 434

PARLEY

v. PARLEY et al.

Prerogative Court of New Jersey.

March 20, 1893.

(Syllabus by the Court.)

Appeal from orphans' court, Hunterdon county; Cullen and Martenis, Judges.

Proceedings by Joseph C. Farley and others to probate the will of Oliver A. Farley, deceased; Francis A. Farley contesting. There was a decree admitting the will to probate, and contestant appeals. Affirmed.

Richard S. Kuhl, for appellant.

W. Holt Apgar, for appellees.

VAN FLEET, Vice Ordinary. The appellant asks that the decree of the orphans' court of the county of Hunterdon, adjudging that a certain writing, purporting to be the will of Oliver A. Farley, deceased, is his true last will, be reversed. Two reasons are assigned for reversal:

First, that the testator was induced by fraud to execute this writing as his will, when in truth, in two respects, it was not his will. Stated more specifically, the charge is that the draughtsman of the writing, who was a son of the testator, inserted two clauses arbitrarily, and without the knowledge of the testator, and then, when he read the writing to the testator, concealed his fraud by not reading the clause fraudulently inserted. It is wholly unnecessary to consider whether, if the fraud charged had been proved, it would have invalidated the whole will, or merely vitiated the clauses improperly inserted; for, by the overwhelming weight of the evidence on this point, it is made entirely clear that the clauses in question, constituted of the testator's testamentary wishes, were inserted by his direction, and were read to him, in their order, when his will was read to him, prior to its execution, and were subsequently read by him when he read the will himself. The evidence in support of the charge is so light and unsubstantial, especially when contrasted with the opposing evidence, and the wrongful conduct alleged is so entirely destitute of either motive or purpose, that I think the charge must be dismissed as without the least foundation in fact.

The other reason is that the testator did not sign the will in the presence of the subscribing witnesses, nor acknowledge the making of his signature thereto in their presence. This reason raises a question of fact, which must be determined by the evidence in the case. The direction of the statute is plain. It requires, not only that a will shall be signed by the testator, but also that his signature shall either be made in the presence of the subscribing witnesses, or the making thereof acknowledged by him in their presence. The decisions are not entirely in accord as to what will constitute a sufficient acknowledgment to be adjudged to be a compliance with this requirement of the statute. Chancellor Zabriskie intimated in Re McElwaine, 18 N. J. Eq. 499, 501, that a declaration by the testator that the writing to which he had signed his name, but not in the presence of the witnesses, was his will, was not such an acknowledgment of his signature as the statute required; and Chancellor Runyon so expressly held in Ludlow v. Ludlow, 35 N. J. Eq. 480, 485, his language being: "The signature must either be made or acknowledged by the testator in the presence of the witnesses, and his saying that the paper is his will is not an acknowledgment of his signature, within the meaning of the statute." The court of appeals of New York, on the contrary, has held, in construing a statute like ours, that when a testator produces a paper to which he has signed his name, and requests the witnesses to attest it, and declares the paper to be his last will, his act and declaration constitute an acknowledgment of his signature. Baskin v. Baskin, 36 N. Y. 416, 419; Gilbert v. Knox, 52 N. Y. 125, 129. The reasoning on which these decisions rest is this: That a testator fully complies with the spirit and purpose of the statute when he verifies his signature as authentic, without regard to the particular form in which such verification is made, and that he cannot make a more unequivocal acknowledgment of the authenticity of his signature than by presenting the paper to which it is affixed to the witnesses for attestation, and publishing the paper so subscribed as his will. And the court of errors and appeals of this state, speaking by Mr. Justice Scudder, in Ludlow v. Ludlow, 36 N. J. Eq. 597, 601, said that it is not necessary that the testator should by his own words acknowledge his signature, but he will comply with the statute in this regard if, by some word or sign, he clearly indicates to the subscribing witnesses his recognition of the genuineness of his signature attached to the paper which he requests them, to attest as his will. It is not necessary, however, in deciding this case, to adopt either of these...