Timoney v. Booth (In re Booth's Estate)

• Citation: 127 N.Y. 109,27 N.E. 826
• Parties: In re BOOTH'S ESTATE. TIMONEY v. BOOTH.
• Decision Date: 02 June 1891
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 109

27 N.E. 826

In re BOOTH'S ESTATE.TIMONEY

v.BOOTH.

Court of Appeals of New York, Second Division.

June 2, 1891.

Appeal from a judgment of the general term of the fifth department, refusing to probate a paper alleged to be the last will of Cecilia L. Booth.

On the 16th of June, 1884, Cecilia L. Booth, a resident of the state of New Jersey, and the wife of the contestant, wrote in her own hand a paper, which was signed by two witnesses, of which the following is a copy: ‘If I, Cecilia L. Booth, should die within the year 1884, I leave to my sister, Geraldine Josephine Timoney, all money due me from my late deceased father's will; also my wearing apparel and furniture; and I also leave to my little nephew, Albert Philip Timoney, all money deposited in the Emigrant Savings Bank in my maiden name, Cecilia L. Hatfield. Witnessed by AMELIA KURRUS, MAMIE CLIFFORD. June 16th, 1884.’ August 10, 1884, Mrs. Booth, then a citizen of the state of New Jersey, died in that state, leaving personal property in the city and county of New York. Geralidine Josephine Timony presented the instrument to the surrogate's court of the city and county of New York as the last will and testament of Cecilia L. Booth, and asked to have it admitted to probate as such, which was contested by the husband of Mrs. Booth. The surrogate held that the instrument was well executed under the laws of New Jersey, and admitted it to probate. 3 Dem. Sur. 414. On an appeal to the general term the decision of the surrogate was reversed, and a new trial directed by a jury. 38 Hun, 644. The following questions were submitted to the jury, all of which were found in the affirmative, except the eighth, which was answered in the negative. ‘(1) Was the paper propounded as the last will and testament of Cecilia L. Booth, deceased, written by her? (2) If such paper was written by said Cecilia L. Booth, where was it written? (3) Was the name ‘Cecilia L. Booth,’ appearing on the first line of said paper, written or made by Cecilia L. Booth, the deceased wife of the contestant? (4) If said name, ‘Cecilia L. Booth,’ was written by Cecilia L. Booth, deceased, was it written by her in the presence of two witnesses who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth? (5) If the name ‘Cecilia L. Booth’ was written by Cecilia L. Booth, deceased, did she acknowledge the writing or making thereof in the presence of two witnesses, who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth? (6) If said paper and said name of ‘Cecilia L. Booth’ was written or made by said Cecilia L. Booth, deceased, did she declare the same to be her last will in the presence of two witnesses, present at the same time, who subscribed their names thereto as witnesses in the presence of said Cecilia L. Booth? (7) Was said Cecilia L. Booth, at the time of making or executing said paper, mentally competent to make or execute a last will and testament? (8) If Cecilia L. Booth, at the time of making or executing said paper, was mentally competent to execute a last will and testament, was such paper procured under undue or improper influence or fraud?' The proponent applied for a judgment at the general term, which was denied, and the contestant for a new trial, which was granted, on the ground that the answer to the fifth question was not sustained by the evidence. 13 N. Y. St. Rep. 344. Upon the second trial by jury all of the issues were again found in favor of the proponent, but the general term again denied proponent's motion for judgment, and denied the contestant's motion for a new trial on all of the questions, but held that the answer of the jury to the fifth question was unsupported by the evidence, and directed a new trial of that question only. Upon the third trial by jury they were directed to answer the fifth question in the negative. Upon appeal to the general term the direction was sustained, and it was held that the will was not entitled to be probated, from which judgment an appeal was taken to the court of appeals. For former reports, see 6 N. Y. Supp. 41; 10 N. Y. Supp. 944.

J. Stewart Ross, for proponent, appellant.

B. F. Watson, for contestant, respondent.

FOLLETT, C. J., ( after stating the facts as above.)

At common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though subscribed at the end of the instrument. Merritt v. Clason, 12 Johns. 102; same case, sub nom. Clason v. Bailey, 14 Johns. 484,People v. Murray, 5 Hill, 468; Caton v. Caton, L. R. 2 H. L. 127;...