141 N.Y.S. 5 | N.Y. App. Div. | 1913
The contestant appellant opposed the granting of the probate upon several grounds, but the only one we consider it necessary to discuss is that which calls in question the sufficiency of the execution of the alleged will.
The facts are simple. The document was drawn by the deceased himself, a layman, upon a printed form such as can be purchased from any law stationer. The blanks were filled in by the testator in his own handwriting, and he signed his name at the end. Following his signature was the usual attestation clause reading: “ Subscribed by Matthew J. Keeffe, the testator named in the foregoing will * * the name of the testator being written in his own handwriting. There were two witnesses, neither of whom saw the testator sign the document, and who did not themselves witness it at the same time and in the presence of each other. In this respect the recitation in the attestation clause was incorrect.
James L. Keegan, who was the first witness to sign, went to testator’s house in the evening, and the testator said to him, “Jim, this is my will; I would like to have you sign it.” He then handed the will to Keegan so folded that the latter part
John S. Simons was the second witness. His testimony is that he called on testator at Iris house, and that after some conversation on other subjects the testator passed the paper over to him and said, “John, there is my will, will you sign it % ” Simons said, “Yes, I guess so. * * I suppose it is a will.’ Testator said, “You see my signature.” Simons replied, “Yours and Keegan’s.” Testator said, “Yes, ” and Simons said, ‘‘ They are good enough for me,”and thereupon signed. Upon further examination of this witness it clearly appears just what happened. When the deceased handed the paper to Simons it was so folded that the testator’s signature at the end of the will was not visible, only the attestation clause being visible. The witness did not see Keeffe’s signature at the end of the will, hut saw only the attestation clause, and it is testified positively by him that what he referred to in the earlier part of his examination as Keeffe’s signature, and the only thing of the kind which he saw was Keeffe’s name written into the attestation clause.
Under this state of facts, as to which there is no contradiction or manner of doubt, we are of the opinion that the probate cannot be upheld. The will must be sustained, if at all, under the 2d sentence of subdivision 2 of section 21 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), reading as follows: “Such subscription shall he made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses.” (See, also, 2 B. S. 63, § 40, subd. 2.)
The will was not signed in the presence of either witness. To be validly executed, therefore, the subscription, not the will, must have been acknowledged to each of the witnesses. An acknowledgment to one will not do.
The rule as to acknowledgment is laid down in Matter of
Matter of Mackay (110 N. Y. 611) was much like the present. The testator called the witnesses and presented to them a paper which he said was his will and that he wanted them to sign it. It was folded in such a way that they did not see the Signature. Held, that the acknowledgment was insufficient, the court; saying, “subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it.” (Citing, also, to the same effect, Lewis v. Lewis, 11 N. Y. 221, and Mitchell v. Mitchell, 16 Hun, 97; affd., 77 N. Y. 596.) A dictum to the contrary in Willis v. Mott (36 N. Y. 486, 491) is distinctly overruled.
This cáse is distinguishable from those in which one witness cannot distinctly remember that all the necessary formalities were complied with. (Matter of Turell, 166 N. Y. 330.) Here the evidence is direct and positive that, as to one witness, the necessary formality was not complied with. The fact that the testator’s name was written in the attestation clause in his own handwriting, and that the name was visible to the witness Simons when he signed as witness does not satisfy the requirement that the signature must be visible, for it is quite evident that that word was not intended by the testator as his signature to the will.
In Matter of Booth (127 N. Y. 109) the testatrix, a resident of New Jersey, attempted to make a holographic will commencing “If I, Cecelia L. Booth, should die,” etc. She did not sign it at the end. The court assumed that the common law prevailed in New Jersey, and recognized the rule that at common law if a person wrote his name anywhere in the body of a will, with intent to execute it, the signature was as valid as if subscribed at the end. It was held, however, that in
The decree of the Surrogate’s Court must be reversed, and the prayer of the petitioner denied, with costs and disbursements in this court to the appellant, payable out of the estate.
Ingraham, P. J., and McLaughlin, J., concurred; Clarke, J., dissented; LAughlin, J., dissented on opinion of Surrogate COHALAN.
Decree reversed and prayer of petitioner denied, with costs and disbursements in this court to appellant, payable out of the estate.