
    In the Matter of the Probate of the Last Will and Testament of James McKay, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed October 26, 1888.)
    
    1. Will—Execution op—Subscribing witnesses must see testator’s SIGNATURE.
    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. To this end, the witnesses should either see the testator subscribe his name, or he, should, the signature being visible to him and to them, acknowledge it to be his signature.
    2. Same—When subscribing witnesses do not see testator’s signature THE WILL NOT ENTITLED TO PROBATE.
    The subscribing witnesses came to the dwelling house of the testator by previous appointment, and while seated at his writing desk, he said to them, “ Gentlemen, what I sent for you for was, to sign my last will and testament." Thereupon he took from his writing desk the instrument offered for probate, and laying it before the witnesses said, “It is now all ready awaiting your signature.” He then presented the instrument to the witness McO. for his signature, and he signed it saying, as he did so, “I am glad Father McKay you are making your will at this time. I don’t suppose it will shorten your life any.” He replied, yes, he wanted it done and off his mind, and then the witness M., who had joined in this conversation, signed the instrument as a witness. At the time of exhibiting the instrument to the subscribing witnesses, he told them it was his will, but he handed it to them so folded that they could see no part of the writing except the attestation clause, and they did not see either his signature or seal. Held, that it was not properly executed, and that probate thereof was rightfully refused.
    Appeal from a judgment of the supreme court, general term, third department, affirming a decree of the surrogate’s court refusing to admit to probate a paper purporting to be the will of James McKay, deceased.
    The facts are sufficiently stated in the opinion.
    
      Louis Hasbrouck, for app’lt; Wm. H. Sawyer, for resp’t.
    
      
       Affirming 8 N. Y. State Rep., 722.
    
   Earl, J.

subscribing witnesses came to the dwelling house of the deceased by previous appointment and while seated at his writing desk he said to them, “gentlemen what I sent for you for was to sign my last will and testament.” Thereupon he took from his writing desk the instrument offered for probate, and laying it before the witnesses said; it is now all ready awaiting your signatures.” He then presented the instrument to the witness. McCarrier for his signature and he signed it, saying as he did so, “I am glad Father McKay you are making your will at this time; I don’t suppose it will shorten your life any, ” to which he replied yes, he wanted it done and off his mind; and then the witness Mulligan who had joined in this conversation signed the instrument as a witness. At the time of exhibiting the instrument to the subscribing witnesses he told them it was his will, but he handed it to them so folded that they could see no part of the writing except the attestation clause and they did not see either his signature or seal.

There would undoubtedly have been a formal execution of the will in compliance with the statutes if the witnesses had at the time seen the signature of the testator to the will. Subscribing witnessess to a will are required by law for the purpose of attesting and identifying the signature of the testator, and that they can not do unless at the time of the attestation they see it. And so it has been held in this court. In Lewis v. Lewis, (11 N. Y., 221), where the alleged will was not subscribed by the testator in the presence of the witnesses and when they signed their names to it it was so folded that they could not see whether it was signed by him or not, and the only acknowledgment or declaration made by him to them or in their presence as to the instrument was “I declare the within to be my will and deed,” it was held that this was not a sufficient acknowledgment of his subscription to the witnesses within the .statute.

In that case, Allen, J., writing the opinion said-. “A signature neither seen, identified or in any manner referred to as a separate and distinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name to which the signature may or may not be at the time subscribed.”

In Mitchell v. Mitchell (16 Hun, 97), affirmed in this court in (77 N. Y., 596), the deceased came into a store where two persons were and produced a paper and said: “ I have a paper which I want you to sign.” One of the persons took the paper and saw what it was and the signature of the deceased. The testator then said: “ This is my will, I want you to witness it.” Both of the persons thereupon signed the paper as witnesses under the attestation clause. The deceased then took the paper and said: I declare this to be my last will and testament,” and delivered it to one of the witnesses for safe-keeping. At the time when this took place the paper had the name of the deceased at the end thereof. It was held that the will was not properly executed for the reason that one of the witnesses did not see the testator’s signature, and as to that witness there was not a sufficient acknowledgment of the signature or a proper attestation. It is true that in Willis v. Mott (36 N. Y., 486, 491), Davies, Ch. J., writing the opinion of the court said, that “ the statute does not require that the testator shall exhibit his subscription to the will at the time he makes the acknowledgement. It would therefore follow that when the subscription is acknowledged to an attesting witness it is not essential that the signature be exhibited to the witness.” This is a mere dictum, unnecessary to the decision in that case, and therefore cannot have weight as authority.

The formalities prescribed by the statute are safe guards thrown around the testator to prevent fraud and imposition. To this end the witnesses should either see the testator subscribe his name, or he should, the signature being visible: to him and to them, acknowledge it to be his signature. Otherwise imposition might be possible and sometimes the purpose of the statute might be frustrated.

We think, therefore, that probate of the will was properly refused and that the judgment below should be affirmed,, without costs.

All concur.  