Baskin v. Baskin , 1866 N.Y. App. Div. LEXIS 183 ( 1866 )

By the Court, E. Darwin Smith, J.

The refusal of the learned surrogate, as appears from his careful and able opinion submitted to us, to admit the will in this case to probate, was put by him upon the single ground that it was not signed by the testator in the presence of each of the attesting witnesses, or acknowledged by him to have been so signed to each of such attesting witnesses. Confessedly all the other requisites to the due execution of a will prescribed by the statute were fully complied with, and all such requisites were fully complied with and proved so far as respects the due execution and publication of the' will in the presence of one of the attesting witnesses. The witness, Henry Smith, testified that he drew the will, saw it signed by the testator, heard him declare it to be his last will and testament, and signed it as a witness at his request. The other witness, Wilsey, did not see the will signed by the testator, but signed the same as a witness at his request and heard him declare that it was his last will and testament at the time. This witness also testified that the will had been signed by the testator before he came into the room, and that the testator did not state to him that he had signed it. This witness not having seen the testator subscribe the' will, it was essential to its due execution that the subscription thereto by him should have been acknowledged by him to have been so made to such witness. The witness testifying that no such acknowledgment was in terms made to him, the learned surrogate held that the will was not duly proved and this provision of the statute had not been complied with, in respect to its execution. The execution of a will is to be proved like any other fact, and a will may be established upon the testimony of one of the subscribing witnesses against the testimony of the others, and also against the testimony of both of the subscribing witnesses. (Trustees of the Auburn Seminary v. Calhoun, 25 N. Y. Rep. 425, and see opinion of Denio in Tarrant v. Ware, note to case. Orser v. Orser, 24 id. 54. Peck v. Cary, 27 id. 9.) . In most of the cases where this question has arisen there has been a conflict in the testimony of the attesting witnesses, or a failure of recollection on the part of one of them in respect to what occurred at the time of the execution, and the same was established upon the weight of the evidence corroborating and sustaining the witness testifying to the execution of the will. In this case there is no such conflict. The • witnesses were not together when the testator signed the will, and did not sign the same as witnesses at the same time or in the presence of each other. They were however both present in the room with the testator when the witness Wilsey signed the will as an attesting witness as stated by him, and both testify in respect to what then took place, and there is not any particular discrepancy in their testimony. They both say that the testator took the will into his hands and said it was his last will and testament and requested the witness Wilsey to sign it as a witness. The will has not the usual attestation clause written under or at the foot of it reciting the particulars required by the statute to authorize the making of a will. It has the simple attestation following: “signed and published in the presence of.” It is then signed by the witnesses, immediately under the name of the testator, so that both the witnesses must have seen the name of the testator when they signed it. The names of the witnesses are written in close proximity and relation to that of the testator, nearly as much so as though they were executing the same instrument as the co-obligors to a bond, or contracting parties to any other instrument in writing. It was therefore virtually impossible for the witnesses to have signed their own names to this will without seeing that it was in fact, or purported to be, signed also by the testator, or by his name. If it were necessary to find, as a matter of fact, that the testator in express terms declared that his name thus signed to this will was so signed by him, or that on calling the attention of the witness to such name so written at the foot of the will, he should say in express terms, “this is my signature,” then I think the decision of the surrogate would be correct and that he properly refused to admit the will to probate. But I think it quite clear that such is not the rule, and that such formality is not required. A will is now to be established or rejected in view of all the facts attending its execation, and an actual or implied acknowledgment is held in repeated cases to he sufficient; In Jauncey v. Thorne, (2 Barb. Ch. 59,) Chancellor Walworth said, on this point: “the production of the will with his name subscribed to it and in such a way that the signature could be seen by the attesting witnesses, and the request of the testator that they should, witness the execution of the instrument by him as his last will, would of itself be a sufficient acknowledgment of his signature to render the will valid.” That is this case exactly. It could not be described in more appropriate language. The Chancellor cites in support of this construction of the statute quite a number of cases. In Illiot v. Geage, (3 Curteis' Eccl. Rep. 160,) the learned judge, Sir Herbert Jenner Fust, said; “ The production of a will by a testator, it having his name upon it and a request to a witness to attest it, would be a sufficient acknowledgment under the present statute. (See also 2 Hagg, 282 ; Hall v. Hall, 17 Pick. 373 ; Cochrane’s will, 3 Bibb. 494 ; 2 Curties’ E. L. 415 ; Gaze v. Gaze, 3 id. 451 ; Keigwin v. Keigwin, Id. 607 ; Blake v. Creight, Id. 547.) An acknowledgment of the testator’s signature in this case I think was clearly involved in his presentation of the will to the witness Wilsey signed by him, and asking him to sign it as a witness immediately under his own name, as much so as if it had been a promissory note and he had asked the witness to sign it as surety or a co-maker. Such request would have implied a declaration that the note was signed by him, or a recognition of the signature thereto as his genuine signature. This must be a sufficient acknowledgment. To require more is to strain the strict letter of the law to the destruction of its spirit and intent, and would be to substitute form for substance. This would be in conflict with the current of the later decisions in this state, in the Court of Appeals ■ and in this court. (Lewis v. Lewis, 10 N. Y. Rep. 224. Coffin v. Coffin, 23 id. 9.) The learned surrogate erred, I think, in refusing to admit the will to probate, and his order declaring that the said will was not executed and attested in the manner prescribed by law for the execution and attestation of last wills and testaments, should be reversed and the will ordered to probate, with costs to be paid by the estate.

[Monroe General Term, December 3, 1866.

Order of surrogate reversed, ^(a)

Welles, E. E. Smith and Johnson. Justices.]

(a) The above judgment was affirmed by the Court of Appeals, June, 1867.