VAUGHAN VS. BURFORD.

out of the bank, in case Burford needed it while in the hospital.

But it will be said, that this paper was read over to Burford in the presence and hearing of the witnesses, and that he signed his name to it without dissent; that, the paper containing testamentary words, this was a sufficient declaration. Now, we submit that this does not amount to such a declaration as the statute requires. The words are, "I do bequeath," these are not sufficient of themselves; there was nothing either said or done by Burford, nor any word or sign used, by which the witnesses could or did understand from him that the instrument to which he affixed his name was his will, or that he intended to execute it as such.-Same Cases.

And the witnesses both say, there was nothing said or done by Burford (except reading the paper and signing) which indicated what the paper was, and they were not aware at the time, they were witnessing a will.

III. There was no request, either express or implied, by John Burford to the witnesses, that they should attest the will as witnesses.

It is equally important to the due execution of a will, that this provision of the statute be substantially complied with.— Same Cases.

Here the persons signed their names before Burford saw the paper, or even knew it was written; they signed their names without any idea they were attesting a will, and there was no communication by Burford to them, from which it can be inferred that he recognized their signatures as the attestation of his will, or assented to it, and therefore no request can be inferred.

IV. But if the Surrogate should decide to give this paper effect as a will, then we insist that this contestant Alfred Vaughan should be appointed administrator, with the will annexed. Because,

1. He is the administrator, duly appointed, and as such entitled to the property not bequeathed in the so-called will.

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VAUGHAN VS. BURFORD.

2. His wife is the nearest of kin in this country, and as such, her husband is entitled to administration in her right. 2 R. S. 75, § 33 (32.)

V. And we ask therefore that it be decreed:

1. That the paper produced was not properly executed as a will, and that John Burford died intestate.

2. If the paper is declared to be a will, and properly executed, then that administration, with the will annexed, be granted to Alfred Vaughan, in right of his wife, as next of kin.

3. That the Public Administrator be ordered to deliver the property in his hands, to him as such administrator.

VI. These contestants are, at all events, entitled to their costs and expenses out of the estate.

THE SURROGATE. The instrument propounded for proof in this case, is in the following words:

NEW YORK, September 15th, 1854. John Burford has 230 dollars in the Manhattan Savings Bank, Broadway. I do bequeath 230 dollars to Sarah Burford at my death.

Witnesses. THOMAS LEWIS.

CATHERINE SHELLEY.

JOHN BURFOrd.

John Burford has 24 dollars in the Emigrants' Industrial Savings Bank, Chambers street, New York.

Witnesses. THOMAS LEWIS.

CATHERINE SHELLEY.

JOHN BURFORD.

This instrument, it appears, was executed under the following circumstances. Burford was sick with the cholera, and sent for Mr. Lewis. On his arrival, Mr. Lewis, in the presence of Catherine Shelley, asked the decedent "what he was going to do with his money?" He said "he would leave two hundred and thirty dollars to Sarah Burford, his sister." Mr. Lewis repaired to an adjoining room, and drew up the

VAUGHAN VS. BURFORD.

paper in question, read it to Catherine Shelley, and when they both had signed it as witnesses, took it back into the decedent's room and read the paper aloud to him. Mr. Lewis says: "I read the paper to him. I told him I had signed his name, and he said he could write his own name. The name, as I had written it, was erased, and he wrote his own name himself." . . "When I read it over to him, I read the "He had ex

names of the witnesses signed to it." . . . pressed more than once to me that he should leave his property to Sarah Burford."

It thus appears that the instrument conforms to the intention of the decedent, as previously expressed, and as stated at the time in the presence of the witnesses, that it was read aloud to him in the presence of the witnesses and signed by him in their presence. The names of the witnesses were read in connection with the other portion of the paper, and he must have seen them when he signed. it. These circumstances seem to me to satisfy the statute in spirit and substance. The witnesses may be said to have signed at the decedent's request, when their names having been read over to him and seen by him, he set his own signature to the document. The reading aloud before he signed, followed by the act of signature, constituted a testamentary declaration. It was openly declared what the contents were, and it is impossible to read the paper without observing its testamentary character. The entire transaction was public and open from beginning to end, every person present knew what was going on, and that all present were likewise cognizant. This satisfies the law, which looks to substance and not to form. Mere form, indeed, is not nearly so satisfactory, for it gives us only a technical proof that the testator declared the instrument to be his will, and requested the witnesses to attest it; whereas we have in the evidence before us, the most unequivocal testimony that the attestation was with his consent and full approbation, and that the nature of the transaction was well understood by every body present. The intention of the decedent was most clear; that he desired to carry it out, was manifested by the act of signing after the

VAUGHAN VS. BURFORD.

reading of the paper, by which act he ratified and confirmed all that had been done, making, as it were, the acts of others, so far as his request was necessary, receive an ex post facto confirmation. The particular order of the several requisites to the valid execution of a testament is not at all material, provided they are done at the same time, that is, as part of the same transaction. What is the same time and the same transaction, is the subject of judicial determination in each particular case, depending upon the facts, and incapable of being governed by any general rule. In the present case, there was no time intervening between any of the ceremonies; the act was entire and one; the parts were strictly consecutive; their order, which came first and which came last, is entirely unimportant. There being no deficiency in the proof, the will must be admitted to probate, unless there be something in the objection that the deceased did not design the instrument to be his will. Whether a paper is a will or not depends upon its provisions; if they are testamentary in their character, and look to dispositions contingent on death, they determine the nature of the act to be testamentary. The writing now before me, in terms "bequeaths" money after the testator's "death." No words could be employed evincing more definitely the animus testandi. It is impossible to hear them read, without knowing they signify a testamentary act. The paper drawn by the witness Lewis, was not a mere note or memorandum of a conversation, but was descriptive of a present act. The testator says, "I bequeath," and signs the document. Had he declared it formally to be his last will and testament, the technical proof would have been more perfect, but the interpretation of the instrument would not have been aided. That depends on the writing, and if a bequest after death is not of the very essence of a will, and does not determine a writing to be a will, it is difficult to say what does. I think, upon the whole, the proponents have established their case, and there must be sentence of due proof. No executor being named, administration with the will annexed may pass to the next of kin, if it be not claimed by the legatee, after citation.

BURR US. SHERWOOD.

BURR VS. SHERWOOD.

In the matter of the estate of SARAH BENNETT, deceased.

A QUESTION as to the distribution of the personal estate of a married woman, arising between her administrator and the administrator of her deceased husband, determined by the law of Connecticut, where the parties were married and were domiciled at the time of their death.

By the law of Connecticut, the personal estate of a married woman dying intestate, is distributed among her next of kin, and does not pass to her husband. At common law, choses in action and stocks of the wife, whether acquired before or after coverture, survive to the wife, unless reduced into possession by the husband in his life-time. By the law of Connecticut, personal property accruing to the wife during coverture, including choses in action, vests immediately and absolutely in the husband, and if he dies without reducing the same into possession, his administrator is entitled.

A receipt of dividends on stock standing in the name of the wife, only reduces the dividends into possession, and not the stock.

The legal title to the assets of a testator is in his executor until distribution, and the title of stock transferred to a married woman after coverture, in satisfaction of a general legacy vested before coverture, accrues after coverture. The time of the transfer is the time the title accrues, although the consideration of the transfer was previously vested.

The transfer of stock is governed by the lex loci as to the forms of the transfer, but not as to the rights of parties or as to the legal effect of a transfer when correctly made.

Where a married woman, domiciled in Connecticut, having before marriage a vested right in the residuary estate of her deceased grandfather, after coverture received, in satisfaction of such portion, a transfer of bank stock in the city of New York, and her husband drew the dividends, but never reduced the stock into possession, nor administered on her estate, though he survived her-Held, that by the law of their domicil, the property vested in the husband at the time of the transfer, and that his administrator was entitled to the proceeds for distribution among his next of kin.

CHARLES HAWLEY, for petitioner.

I. The administrator of the wife of John B. Bennett is entitled to the proceeds of certain shares of stock in the Union Bank, in the city of New York, belonging to Daniel Nash, her grandfather. This stock was a part of the residue of his