Dwarack v. Wakefield

KOFORD, P. J.

This is an appeal from an order denying a petition for probate of the last will and testament of Charles Johnson, deceased. The appellant was the petitioner and was named in the will as an executor. The record on appeal is a clerk’s transcript and a printed transcript which prints the cleric’s transcript and also prints the bill of exceptions signed and approved by the judge. The notice of appeal and the appellant’s brief were duly served upon the attorney for C. K. Wakefield, special administrator of the estate of said deceased. No brief or argument in support of the order appealed from has been filed. Appellant states that he does not know why the petition was denied,

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but assumes that it was on account of the supposed insufficiency of the testimony of the subscribing witnesses in respect to either the sound mind of the testator or in respect to his request of the witnesses to act as subscribing witnesses.

.The witnesses to the will were F. J. Kitching and F. E. Wells. Both signed the will in the presence of the testator and of each other, subscribing to the usual statement reciting the details of the due execution of the will. The subscribing witness, Kitching, testified to all the details of a due execution of a will including the statements that he was acquainted with the testator, that the testator was of sound and disposing mind, free from fraud, undue influence, etc., and that he and the other subscribing witness signed as witnesses at the request of the testator. The other subscribing witness testified that he was requested by the petitioner to come to the sick room of the testator to witness a will, and as to the execution of the will he testified as follows:

“ . . . there was there present at said time besides myself and said 0. A. Dwarack and said Charles Johnson, D. T. Winne, an attorney at law, and I. J. Kitching. On entering the room of Charles Johnson, whom I had not met before, I asked him in rather a joking manner if he wanted to make his will and he stated he did; that these were the only words spoken to or by me while I was in Mr. Johnson’s room; that said Charles Johnson then signed said instrument hereinbefore referred to which had been previously prepared; that said Charles Johnson signed the same in the presence of myself and said I. J. Kitching and said I. J. Kitching and myself then and there signed the same in his presence and in the presence of each other; that neither Charles Johnson or any other person in his presence requested me to sign said instrument as a witness; that I left immediately after signing said instrument;