Irwin v. Irwin

Decided December 15, 1863

New York Surrogate's Court · decided 1863-12-15

James G-. Irwin died in January, 1863, leaving a will, which was offered for probate. The widow of the deceased objected to the probate, on the grounds that the will was not properly executed, and that there was not a sufficient publication of the instrument. It appeared by the testimony of John Hunter, who drew the will,- that he read the will to the testator, and then told him to-call his witnesses. The testator went to the door and called in Henry White and James H. Irwin.

Decided 1863-12-15

¶1The Surrogate. — The testimony in this case fails to show a sufficient publication.

¶2It is unlike the cases where the subscribing witnesses fail to remember what occurred. Here they expressly swear that the vital requisites to the valid execution of the will did not occur.

¶3Our statute goes further than the English statute in respect to the publication of the will. Our courts hold parties to a strict compliance with the statute in this respect.

¶4In the case of Lewis v. Lewis (1 Kern., 220), the testator said, “I declare the within to be my free will and deed,” yet *498the court held that such a declaration was not a sufficient declaration that the instrument was his last will and testament.

¶5The probate of the instrument must be denied.