Roberts v. Kennealy

HOUSER, J.

This is an appeal from an order by which a petition for the revocation of the probate of the will of Francis Nita Miner, deceased, was denied.

As stated by appellants, the sole question presented for consideration “is whether the will was acknowledged by decedent in the presence of the two witnesses, present at the same time.”

[594]

The evidence which related to the acknowledgment of the will which was adduced at the hearing of the contest showed that on a certain date the testatrix signed and acknowledged the will in the presence of one of the witnesses thereto, who at the same time, as such witness, affixed her signature thereto. On the day following, while the second witness and the testatrix were in a bedroom in an apartment occupied by the latter, the testatrix showed the will to the second witness, who thereupon read the same. At that time and continuously thereafter during the alleged acknowledgment of the will by the testatrix, the first witness was either in the same room with, or in an adjoining room to, that occupied by the testatrix and the second witness. As testified by one of the witnesses, it was “only just a small apartment.” The size of each of the rooms was approximately ten by thirteen feet. “It was very close quarters.” The door between the two rooms was open and, with the exception that the first witness did not actually see the second witness attach her signature to the will, the first witness saw all that took place and heard all that was spoken between or among the persons then and there present. As stated by the first witness, she “had a good idea that she [the second witness] signed it.”

In response to a question as to what she heard at the time the will was attested by the second witness, the first witness testified:

“Well, I believe after Mrs. Cotter [the second witness] had read the will, I believe Mrs. Miner said to her, ‘What do you think of this?’ or, ‘What do you think about it?’ or, ‘What do you think of this will?’ and Mrs. Cotter made some remark, that it was perfectly all right for her, it made no difference, if those were her wishes, something to that effect, and Mrs. Miner said, ‘ Those are my wishes, I want my two own sisters to have my property, ’ or words to that effect; I don’t know, they may not be exactly just the same, but words to that effect that she said. . . . Well, I heard Mrs. Cotter ask her if she was going to leave anything to the half brothers, and she said, no.”