CASES DETERMINED IN THE COURT OF APPEALS OF THE STATE OF NEW YORK, June Term, 1863. PECK V. CARY. Neither habitual intoxication nor the actual stimulus of intoxicating liquors, The will of a confirmed drunkard established, though executed after a The attesting witnesses held to have subscribed at the request of the testator, upon evidence that the draftsman of the will had stated to the testator the necessity of having witnesses, and, upon an inquiry as to who should be obtained, calling upon three persons who were within sight and hearing and requesting them to witness R.'s will—the paper then lying upon the table near which the draftsman and testator stoodand stating in the hearing of all that R. was going to sea and was making his will, and he wished them to witness it. The signature of the testator, or his acknowledgment thereof in the presence of the witnesses, and his publication of the instrument as his will, SMITH.-VOL. XIII. 2 Peck v. Cary. held to be proved by the attestation clause and the attending circumstances, though after the expiration of two years none of the witnesses could testify that he saw the testator sign or heard him acknowledge his signature, nor could testify that he himself read, or heard read, the attestation clause, which distinctly affirmed the signature and publication in his presence. APPEAL from the Supreme Court. The surrogate of the city and county of New York admitted to probate an instrument purporting to be the last will and testament of Robert L. Peck, who died at New London, in Connecticut, of which State he was an inhabitant, on the 20th of September, 1859. He left a brother of the whole blood, Frederick M. Peck, the present appellant, who contested the probate; and also two halfbrothers, Ferdinand E. and Samuel N. Cary, and two half-sisters, Sarah J. Cary and Anna G. Cary, the last named being infant children of his mother by a second marriage. By the will, executed in Norwich, Connecticut, and bearing date June 23d, 1858, he gave to his brother; F. M. Peck, the interest of $3,000, which he owed him, until Alice, the infant daughter of said Peck, should arrive at the age of twenty-one, when that debt was to be paid to her, but if she should die under age then the amount was to be retained and enjoyed by her father. He gave a store in Pearl street, in the city of New York, and a dwelling house in the same city, and all the residue of his estate, to his two half-sisters and one of his half-brothers, S. N. Cary, and appointed Samuel C. Morgan, of Norwich, his executor. The will had been admitted to probate by the judge of the proper district in Connecticut, after a trial in which the present appellant was the contestant. It was propounded before the surrogate of New York by Mr. Morgan, the executor. The probate was contested on allegations of defect of testamentary capacity, and that it was not executed with the formalities required by the statute of this State. There were three witnesses who subscribed an attestation clause in these words: "Signed, sealed, published and pronounced by the testator, as and for his last will and testament, in presence of us whose names are hereto set as witnesses, who signed our names Peck v. Cary. respectively in presence of the testator and of each other." After hearing many witnesses who were examined orally, and several depositions taken in Connecticut on commission, and some of the evidence taken before the judge of probate there, he decided to establish the will, and his decree was affirmed by the Supreme Court on appeal, upon which the present appeal was taken. H. A. Cram, for the appellant. John Graham, for the respondent. DENIO, Ch. J. The appellant is not conluded or affected by the decision of the probate court in Connecticut. The transmission of the title to real estate situated in this State, either by testament, by conveyance inter vivos, or by intestacy, is regulated by our own laws. Whether the judgments of the court of probate in Connecticut are confined to personalty, or assume to determine upon devises of real property, they have no effect upon the title of real estate here. (Story's Confl. of Laws, §§ 474, 591; Hosford v. Nichols, 1 Paige, 220, 226.) The rule is different as to personal property, the title to which is governed by the domicil of the owner (Parsons v. Lyman, 20 N. Y., 103); and hence the respondent's counsel relies upon the circumstance, incidentally disclosed by the evidence, that the appellant is a debtor of the estate and resides in the city of New York, and that the debt is assets here; and he refers to a provision of our statutes, authorizing the granting of letters. testamentary, with the will annexed, upon the production of a will which has been proved in a foreign state or country. (Laws, 1830, p. 389, § 68.) But no application was made to the surrogate under this provision. The executor sought to prove the will with a view of affecting the title to the real estate. His petition did not suggest the existence of personal assets in this State, but relied, for the purpose of showing jurisdiction in the surrogate, upon the deceased having died seized of real estate in the city of New York. The case must, therefore, be examined without reference to the Connecticut probate. Peck v. Cary. The first inquiry relates to the mental condition and capacity of the alleged testator. He was about thirty years of age at the time of signing the will, and had received a good English education. By the death of his father, and the remarriage of his mother, and her removal from the State while he was quite young, he seems to have been left without the influence of domestic restraint, and, having inherited a handsome property, was enabled to procure indulgences, the abuse of which rapidly undermined his habits, his health and moral character. For some time before making the will he had become excessively addicted to the use of spirituous liquors; had experienced several attacks of the peculiar mania arising from such habits; had more than once attempted to put an end to his existence by means of poisonous drugs; and he eventually committed suicide. Several of the witnesses stated, with some exaggeration probably, that he was scarcely ever sober. He indulged, moreover, in habits of licentiousness, not less destructive certainly to his moral character. The statement of A. B. Peckham, one of the witnesses with whom he boarded a part of the season in which the will was executed, seems to present the fair result of the evidence upon this topic. "His habits," he said, “were generally intemperate; when so, he was quarrelsome and disagreeable. When getting over his sprees, he was melancholy and low-spirited." It cannot, however, be maintained that he was either constantly intoxicated, or suffering from the result ing reaction; for the same witness states that while at his house he was sober and straight for three or four weeks, and was then bright and rational. To the same purpose are several letters written in 1856, by his brother, the appellant, then a merchant at Worcester, Massachusetts. He was anxious to have Robert, the testator, become a partner in his business by investing his money and taking part in the actual management. In one of them he says: "He is now fairly at work in the store, conducting himself as well as we could ask, and wishing to feel an immediate interest in the business." He had, however, relapsed, before the making of the will, for Mr. Morgan, the person who drew it, and was named the executor, Peck v. Cary. and who had, moreover, been his guardian during his minority, had, on account of his bad habits and consequent imprudence, been appointed his Overseer under the laws of Connecticut. The statute on that subject authorizes such an appointment to be made by the selectmen of the town, where they find any person, by idleness, gaming, intemperance, debauchery, mis-. management, or bad husbandry, likely to spend and waste hist estate, to be reduced to want and to become chargeable to the town. The person appointed to be his Overseer is to advise, direct and order him in the management of his business, and it is declared that no person under the appointment of an overseer shall be capable of making a contract without his consent. This appointment, in the case of the testator, existed at the time of making the will and continued until his death; not, however, without an effort on his part to remove it, on the ground of his alleged reformation, in which some of his friends. concurred. For instance, on the first day of February, in the year in which the will was executed, we find the appellant writing to Morgan-in consequence, no doubt, of the testator's importunities that he was not just then well situated to speak. correctly of his deserts, but that he had not recently heard any bad reports of him, and was inclined to think he intended to do well in future. He adds: "You must use your best judg ment in the matter, and so far as I am concerned have my warranty in remitting the disagreeable penalty of Robert's past bad conduct." Among the exhibits there is a long letter from the testator to Morgan, written from New York, August 8th, 1858. The writer had, by the advice of his friends, engaged as a hand on board of a sea-going vessel which was about to sail from that port on a foreign voyage, and was, as he writes, immediately put to very hard labor in the preparations for setting out, which proved too severe for his badly impaired constitution, and he had left the ship. The expressed object of the letter was to obtain a supply of money to enable him to go to Savannah, where he hoped to find employment. It is not material to my purpose whether the statements of the letter were sincere, or whether its object was by plausible suggestions to procure a j |