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Page:Popular Science Monthly Volume 24.djvu/539

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523
LAST WILLS AND TESTAMENTS.

To this there were no witnesses, the law of Louisiana requiring none. After ten years' litigation or controversy this was also sustained as a will (Succession of Ehrenberg, 21 La. Ann., 280). The sufficiency of the legal attainments of each testator in these instances, it is true, was enough, but to establish that fact old Nance and Mrs. Loper undoubtedly paid handsomely. In the following case the success of the would-be testator was not so signal:

In 1876 an instrument purporting to be the last will and testament of John Kelly was offered for probate to the Surrogate of the County of New York. It was partly written and partly printed, and was apparently a short form of will such as may be purchased at a stationer's. After disposing of his property, this document ran as follows:

 

"Likewise I make, constitute, and appoint Edward McCarthy to be executor, J. Kelly, of this my last will and testament, hereby revoking all former wills by me made. In witness whereof I have hereunto subscribed my name and affixed my seal the 24th day of July, 1874, in the year of our Lord one thousand eight hundred and sixty.

Witnesses:
Edward McCarthy,
Daniel Van Clief.

Subscribed by John Kelly, the testator named, etc."

 

When the deceased requested the witnesses to sign the instrument, the name J. Kelly had already been written by him where it first appears. The witnesses then signed it, and afterward the deceased wrote his name where it appears in the attestation clause. The point in dispute touched the first requirement of the statute: Was the subscription J. Kelly in the body of the instrument a "subscribing at the end of the will"? The subscription John Kelly in the attestation clause was, of course, bad, being made after the witnesses had signed. It appeared from the evidence that the testator presented the instrument to the witnesses, saying: "I drawed up a will for fear anything might happen me before coming back; in case there was any dispute about the trifle of money I have, I want you to witness this will." The name J. Kelly had been written in before this was said. The surrogate rejected the instrument, as not executed and attested in the manner prescribed by law. The General Term reversed his decree, directed that the will be admitted to probate, and that letters testamentary issue thereon (7 Huec, 290). The Court of Appeals then finally settled the law in the case by reversing the Supreme Court and setting aside the instrument as absolutely void (67 N. Y., 409). A curious circumstance in connection with the proof of this instrument is the fact that the Supreme Court were unanimously of the opinion that this document was a will, while the Court of Appeals were unanimously of the opinion that it was not! Even when, by a mistake in turning over the paper, the signature is put on the back of a blank