
    Matter of Klett’s Will.
    (Surrogate's Court—Westchester County,
    April, 1893.)
    A will was probated in Pennsylvania in 1859, and as it related to some real property in this state, and could not be removed from the other state, a commission duly issued from a Surrogate’s Court of this state to take the evidence relating to its execution. It appeared that the attestation clauses to the will and codicil were similar, and stated that they were “signed, sealed, published and declared” by the testator, “as and for his last will and testament, in the presence of us who have hereto subscribed our names in the presence of the testator and of each, other.” The only living witness to the will testified that the testator presented the will to him, with his name already signed to it, and requested him to be a witness to his will and that he signed it accordingly. He could not recollect, after the lapse of more than thirty years,, whether the other two witnesses were present. The only living witness to the codicil, the lawyer who drew it, would not swear positively that he saw the testator sign it, but believed that the attestation clause-correctly stated what occurred, testified that he signed it at testator’s request, and that the other witnesses either signed at the request of the testator or at his request, with testator’s consent. The handwriting of the testator to both will and codicil, as well as of the other subscribing witnesses thereto, was sufficiently proved as provided by section 3630 of the Code of Civil Procedure. Held, that the will and codicil should be admitted to probate.
    Frederick Klett, deceased, resided and died in the city of Philadelphia, Penn., leaving what purported to be a last will and testament, and codicil thereto, and which was duly admitted to probate by the register of wills in that city on the 3d day of August, 1859. The will related to some real estate situated in Westchester county. A petition is now presented by Franklin 0. Jones, the alleged sole surviving executor thereof, in which it is stated, among other things, that said will is now preserved among the archives of the office of Said register, and cannot be removed therefrom by reason of the laws of that state, and prays for the proving of the will, etc. A certified copy of the will and codicil, with the proofs there taken, were presented, and a commission was thereupon issued to take the evidence in Philadelphia relating to the execution thereof. That evidence has been taken and is now presented, and probate here asked for.
    
      W. S. Allerton, for petitioner.
    
      Stapler, Smith dk Tomlinson, for F. IL Beckley and others, opposed.
   Coffin, S.

Judging from the language of the attestation clauses of the will and codicil, and the proofs taken on the probate by the register of wills, the laws of the state of Pennsylvania do not require that the witnesses should sign at the request of the testator, while the law of this state does. In order that the will may be admitted to probate here, it must be proven to have been executed according to the laws of this state. The attestation clauses to the will and codicil are similar, and state that they were signed, sealed, published and declared ” by the testator, “ as and for his last will and testament, in the presence of us who have hereto subscribed our names in the presence of the testator and of each other.” They do not state that they were requested by him to so sign, and the proofs follow the attestation clause. Our law, as stated, requires this request, in some form, to be made. It need not, however, be so stated in the attestation clause. That is no part of the will, and a will may be proven where there is no such clause, provided the witnesses can testify to facts showing a compliance with the requirements of the statute. In this case, only one of three witnesses, whose names are signed to the will, is alive, and only one of three to the codicil. Hence, if the will is susceptible of proof at all, it must be by the testimony of the living witness, and by proving the handwriting of the testator and of the subscribing witnesses, under section 2620 of the Code, and so of the codicil. Pleis, the living witness to the will, testifies that the testator presented the will to him with his name already signed to it, and requested him to be a witness to his will, and that he signed it accordingly. This is all our statute requires, in so far as he Was concerned, it having been repeatedly held that where the testator presents a paper with his name already signed to it, and declares it to be his will, it is tantamount to an acknowledgment of his signature. He could not, after the lapse of more than thirty years, recollect whether the other witnesses “were present, nor was it necessary that he should. The statute does not require that the witnesses should sign in the presence of each other. The handwriting of the testator and of the other subscribing witnesses to the will having been proven, as provided by the section referred to, the will appears to be sufficiently established, and is, therefore, admitted to probate.

The only surviving witness to the codicil is Richard J. Williams, a lawyer, who drew the codicil to the will, and was present at its execution. He does not swear positively that he saw the deceased sign it, but believes that the attestation clause, commencing “ signed, sealed,” etc., states correctly what occurred, and says he signed as a witness at the request of the deceased, and that the other two witnesses either signed at the request of the deceased, or at his (Williams’) - request, with his consent. The handwriting of Frederick Xlett and of the deceased witnesses was sufficiently proven by another witness. How, while Mr. Williams does not directly testify that the deceased declared the paper to be a codicil to his will, yet he does say that he prepared the codicil at his bedside and at his dictation, and that he believes the attestation clause, which states that he “ published ” the paper as such, to be true. There can be no reasonable doubt, from these facts, that the deceased fully knew and understood the character of the paper which he was executing; and this fulfills the requirements of the statute in this respect.

From the language of the codicil it is fair to infer that it was indorsed upon or appended to the will, for it says, “ I, Frederick Klett, the within-named testator,” and refers correctly to the date of the will. I have heretofore held in Storm’s Will, 3 Redf. 327, that the proving of the codicil,, under similar circumstances, proves the will.

Both are, therefore, admitted to probate.  