
    Rockland County.
    Hon. GEORGE W. WEI ANT, Surrogate.
    March, 1890.
    Matter of Kane.
    
      In the matter of the application for the probate of the will of Sarah Kane, deceased.
    
    One of the witnesses to the will of the decedent had drawn up the will in her presence. This instrument was spoken of by that witness in the hearing and presence of the other witness, and in the presence of the decedent immediately before the execution and attestation, as the will of decedent. She signed it with her mark. Upon the proceedings for the probate of the will the witness who had drawn up the will being dead, the other witness testified that he had signed the will as a witness before the testatrix had made her mark. Held, that the will must be admitted to probate, as there was proof of its due execution and attestation, as the testimony of the witness that he had signed before testatrix could be presumed to be erroneous, from the facts, which as appeared by the evidence, accompanied the execution of the will, showing that his recollection of the order in which it was signed was incorrect.
    The subscription of a will by the mark of the testator may be proved after evidence of the handwriting of a deceased witness, by the surviving witness, if his testimony convinces the court of its truthfulness.
    Application for the probate of the will of Sarah Kane, deceased.
    The facts appear in the opinion of the Surrogate.
    C. P. Hoffman, for proponent.
    
    Arthur S. Tompkins, for contestant.
    
    Andrew Tallon, special guardian.
    
   The Surrogate.

The only questions raised by the contestants relate to the proper execution of the will. It is well settled that to entitle a will to be admitted to probate, the statute must be fully complied with, and while courts have differed as to the interpretation, construction and application of the statute, they have agreed that the formalities and requisites thereof must be observed. The difficult question usually is, as to whether or not the facts bring the case within a substantial compliance with the statutory requisites.

Every last will and testament must be executed and attested in the following manner:

1. It shall be subscribed by the testator at the end of the will.
2. Such subscription shall be made by the testator in the presence of each witness, or shall be acknowledged by him to have been made by him to each of said witnesses.
3. The testator shall, at the time of making such subscription or acknowledgment, declare the instrument as subscribed or acknowledged by him to be his last will and testament.
4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of' the testator, 3 R S. 63, (8th ed., p. 2547,) § 40.

Now, it is claimed by the contestants in this matter that the evidence does not establish a substantial compliance with the statute in the following particulars :

1. That the testator did not sign the will. 2. That if she did, she signed before the witness Horgan. 3. That she did not publish the paper as her last will and testament. 4. That the witness Horgan was not requested by the testator to become an attesting witness. 5. That the testatrix did not subscribe the will in the presence of the witness Horgan.

The subscribing witness Stephens is dead. His handwriting is proven, not only that of his two signatures as a witness, but also that the written portions of the will are in his writing. The attestation clause has recited therein a compliance with all of the above statutory requirements. He filled it out and signed his name to it. He was cognizant then of its contents, and having charge of the execution of the will, it must fairly be presumed that he saw that these requirements were followed. So far then as a deceased witness may speak, he attests a due subscription of said will by the testatrix and a full compliance with all other statutory requirements.

“ A regular attestation clause shown to have been signed by the witnesses and corroborated either by the circumstances surrounding the execution of the instrument, the testimony of other witnesses to the fact of due execution, or other competent evidence has been held in many cases to be sufficient to establish a will signed by the testator even against the positive evidence of the attesting witnesses to the contrary.” Matter of Will of Cottrell, 95 N. Y. 329-335.

The testimony shows that Stephens was a justice of the peace and had been one for a great number of years, and that as such he had experience in drawing wills which it is proper to infer includes also the conducting of the execution thereof. This was always considered to afford a strong presumption or compliance with the requirements of the statute in relation to the execution of wills. Matter of Cottrell, supra, 339.

This presumption also prevails as to the order of observance of the requirements of the statute.

The testimony of the surviving witness, Horgan, as to the subscription by the testator, corroborative in some particulars,.and as to such matters as he does not speak of, the presumption may fairly stand as unchallenged. Horgan testifies as to the signing by the testatrix as follows: “.l saw her put her hand to the pen, and I could not say whether she wrote or not, but it is my belief she did write it, but I could not say. That is my impression. I saw the pen in her hand, and I saw her sit down to the table and put the pen upon the paper; she took hold of the pen.” In answer to another -question, he testified that he saw her sign her name to it.

The testimony of this witness also shows that when he went into the house of the testatrix on this occasion that the witness Stephens was at a table in one room with papers before him; that the testatrix was in an adjoining room with the door open; that the testatrix was called in; that the witness Horgan, was sitting at the table; that the testatrix came in by the table, and then signed as above.

I think that this testimony, in connection with the presumptions to which I have called attention, together with such reasonable inferences as may be indulged from an inspection of the instrument itself lead necessarily to the conclusion that the testatrix signed the will by making her mark where it appears at the end thereof, and in the presence of both witnesses. Witnesses testify that all written parts of the instrument, including the attestation clause and the words “her” above and “mark” below the cross mark are in the handwriting of the witness Stephens. The witness Horgan saw the testatrix writing on the instrument; if so, then it seems that she must have necessarily made the mark.

But it is claimed that the testator signed her name after the witness Horgan. Horgan does so testify. I think, however, he is mistaken. The presumption is otherwise. He testifies that the witness Stephens signed once before him. I am quite positive that he is in error. I have examined the overlapping parts of the signatures with a magnifying glass, and such an examination shows very clearly that both of Stephens’ signatures were made before those of Horgan. This shows that Horgan’s recollection of the particulars and the order of their occurrence after the lapse of so many years may be somewhat obscured and incorrect.

He signed twice, once opposite the testatrix’s signature, and a second time beneath the attestation clause. Now, if it were true that he signed before the testatrix, then he must have signed his name opposite the place of the testatrix’s signature, when that place was blank, which is rather an unreasonable thing for him to have done, or that he should have been asked or permitted to do by one having experience in .the execution of legal documents, such as Stephens had. Matter of Look, 1 Connoly Surr. Rep. 403. The signature of the testator, preceding that of the witness in point of space is presumed to have been made first in point of time. Matter of McMulkin, 6 Dem. 347.

As to publication by the testatrix of the instrument in question, and the request that Horgan should become an attesting witness, I am of the opinion that the evidence shows a substantial compliance with the statutes. Upon proof of the signature of a will,, and an attestation clause full in its recitals of compliance with the statute, as in this case, the presumption of due execution would carry the will to probate in the absence of any recollection of the circumstances by the surviving witness. Matter of Pepoon, 91 N. Y. 255. Now, I do not find anything in the testimony to overthrow this presumption, while, on the contrary, in some particulars, I find evidence confirmatory of the same.

The witness Horgan testifies that George Kane, the son of the testatrix, came to the store of the witness and asked him if he would come up and be a witness to his mother’s will; that she was to make a will, and she asked him “to come down and see if I would come up.....£ the squire is at the house now.’ He came down a second time, and I went up with him. When I got there, the squire, Peter Stephens, was there in the front room. He had papers before him, and Mrs. Kane was in the inside room. I went into the room where Squire Stephens was sitting. Everything was ready. I just sat down.....he said : £ I sent for you to be present at the signing of the will,’ and he called for Mrs. Kane, and she came out of the room and he said: £ Mrs. Kane, you heard this will read,’ and she said, £ Yes,’ and he said: £ Sign it,’ and I signed it, and said,£ Mrs. Kane, you sign it,’ and she signed it, and I left.”

“You were asked to sign it by Mr. Stephens?” “Yes sir.” “Did Mrs. Kane say anything about it?” “Not a word that I remember. He asked us to sign it, and we did.” Q. “And she did not ask you to sign it as a witness ? ” A. “ Mr. Stephens did, I don’t think she did.” I saw Mrs. Kane in the adjoining room, the doors were all open.” Q. “ So you could hear any conversation between persons in the two rooms ? ” A. “Yes sir.” Q. “Squire Stephens told you what you were wanted for there?” A. “Yes sir. Well, he said simply, £ Mr. Horgan, sign this will. Witness this will.’ I understood it was Mrs. Kane that wanted me to do it. The next thing, Squire Stephens called for her to come into the room and he said to her, or he asked her, 1 Mrs. Kane, you have heard this will read ?’ She said, £ Yes sir,’ she had heard it read, and Mrs. Kane came in by the table where Squire Stephens was sitting. He (Squire Stephens) said, £ Mrs. Kane, we are ready for you to sign it now.’ ”

Then the execution and attestation, immediately followed. This testimony, with other facts and circumstances in evidence, together with the presumptions arising from the recitals in the attestation clause of publication and request, and from the fact that the execution of the will was conducted by one having knowledge of the requirements of the statute to constitute a due execution, establish a publication and request that satisfies the legal requisites.

No particular form of words is required to constitute a due publication and request. Matter of Hunt, 110 N. Y. 278. It is a substantial compliance with the statute if, in some way or mode, the testator indicates that the instrument the witnesses are requested to subscribe as such is intended and understood by him to be his executed will. Id.

The legislature only meant there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will, and that any communication of this idea or to this effect will meet the object of the statute; that it is enough if in some way or mode the testator indicates that the instrument the witnesses are requested to subscribe as such is intended or understood by him to be his will. The word “ declare ” is said to signify u to make known, to assert to others, to show forth,” and this in any manner, either by words or acts, writing or in signs, in fine, that to declare to a witness that the instrument described was the testator’s will must mean to make it at the time distinctly known to him by some assertion or by clear assent in words or signs. Lane v. Lane, 95 N. Y. 494-498. And publication and request may be incorporated in the same words and acts. Coffin v. Coffin, 23 N. Y. 9.

Within these authorities and the construction there given to the statutes I have no hesitation in arriving at the conclusion that the evidence shows a due publication of the will and a request to the witnesses. The witness Stephens, at the request of the testatrix, drew the will, and in her presence. The instrument thus prepared was spoken of by Stephens to her and in the presence and hearing of the other witness when all three were present and immediately preceding its execution, and attestation, thus showing beyond a doubt that the paper she signed was known to her at the time to be her will, and that she intended giving it effect as such. The witness Stephens in this matter must be deemed to have been her agent in all that he did, in the preparation and execution of this will. The evidence calls for the finding of such authority. His request to the witness Horgan, and whatever else he said to that witness in the presence of the testatrix or that may reasonably be inferred to have been said or done in her presence in reference to the will or as to his becoming a witness, thereto should be considered as said or done by her.

The words of request or acknowledgment may proceed from another and will be regarded as those of the testator, if the circumstances show that he adopted them and that the party speaking them was acting for him with his assent. Gilbert v. Knox, 52 N. Y. 125.

Upon the entire proof in the case, and guided by the authorities giving construction to the statute, as also by those establishing inferences and presumptions and touching the force thereof as connected with the execution and attestation of wills, I am convinced that a fair and substantial compliance with the statutory requirements has been shown and that the instrument should be held to have been duly executed, published and attested as the will of the testatrix.

The cases cited by the contestant’s counsel are not in conflict with this conclusion, as each is distinguish- ' able upon the facts and circumstances.

In the matter of McMulkin, 6 Dem. 347, there was no attestation clause. In the Matter of Sarauw, 2 N. Y. Supp. 629, the persons having charge of the execution of the will were inexperienced in the matter of wills, and I think it may be inferred that there was no attestation clause. In Walsh v. Laffan, 2 Dem. 498, the paper was not referred to as a will by the testatrix, or by either of the witnesses, nor did either of the three use words or expressions asserting or even intimating that the instrument was of a testamentary character. In the Matter of Booth, 24 N. Y. St. Rep. 647; 6 N. Y. Supp. 41, the will was executed in New Jersey, where a will is not required to be subscribed or signed at the end thereof. It was sought to establish the will by proving the name of the testatrix in the first line of the instrument as an execution thereof.

But, notwithstanding I have reached the conclusion that the evidence establishes a due publication, execution and attestation of this will, the counsel for the contestants claim that the testatrix having subscribed the will by mark, the will cannot be admitted to probate (one of the witnesses being dead) without the testimony of another witness who saw the testatrix make her' mark, and confronts me with authorities which appear to sustain his contention. He cites matter of Walsh, 1 Tuck. 132; Matter of Reynolds, 4 Dem. 68; Matter of Phelps, 1 Connoly Surr. Rep. 463; Worden v. Van Gieson, 6 Dem. 237. That is not my understanding of the law, and as far as my observation has gone, it is contrary to the usual practice.

If it be true that no will signed by mark can be admitted to probate without the testimony of two witnesses who saw the testator make the mark, then very many wills so signed must and will fail of probate, for it is a matter of frequent occurrence that one of the subscribing witnesses is dead or beyond the reach of the court, and it is usually the case that no other persons are present at the execution of a will than the testator and attesting witnesses.

Such a construction of the statute applies one rule to wills subscribed by a testator who can write and another to one who cannot do so. This should not be the case, unless clear words to that effect appear in the statute. The statute makes no such distinction, and there are no words therein that will authorize such a construction. The rule is uniform as to all written wills, however subscribed.

Section 2620 of the Code of Civil Procedure provides : If all of the subscribing witnesses to a written will are, or if a subscribing witness whose testimony is required is dead or incompetent by reason of lunacy or otherwise, to testify, or unable to testify; or if such a subscribing witness is absent from the state, or if such a subscribing witness has forgotten the occurrence or testifies against the execution of the will, the will may nevertheless be established upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon trial of an action.”

This section received a practical construction in Brown v. Clark, 77 N. Y. 369; Matter of Pepoon, 91 Id. 255; and Matter of Cottrell, 95 Id. 329, and was held to mean, in accordance with prior decisions cited, “ that the proof of circumstances bearing upon the question of the authority of the will in connection with a regular attestation clause duly executed were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of the will.” Matter of Hesdra, 119 N. Y. 615, more fully, 28 St. Rep. 810.

if the word handwriting,” as used in section 2620 above, is to receive the narrow construction of meaning one who can write, then as already stated, almost every will signed by mark, where a subscribing witness is dead, must fail of probate, and we shall have one rule as to written wills signed by one who writes his name, and another as to such wills as are subscribed by one who makes his mark.

I am not disposed to adopt such a construction. It is my opinion that the word handwriting ” signifies, as here used, the subscription of the testator to the will, whether it be by writing or otherwise. It implies the characters by which he subscribed the will. When this provision of the Code was enacted, it was established as unchallenged law that a will could be legally subscribed by mark as well as by writing the name (Jackson v. Jackson, 39 N. Y. 153), and if any distinction wa.s intended, dependent upon the method of subscription or signing, the legislature would have so clearly provided.

Nor is there any force in the criticism that a mark does not permit of identification, and therefore there can be no proof of the handwriting where a witness can testify to having seen the mark made. Cases may arise where a will might fail of probate in the event that no witness can be produced to testify to having observed the mark made, but it is not a failure to prove the handwriting where any witness is produced who saw the subscription by mark.

It surely is proof of a testator’s handwriting when a witness testifies to having seen it made, and it is generally more satisfactory and convincing than when testimony is given as matter of opinion by one who did not observe the writing done.

In making provision for the establishing of a will in cases arising under section 2620 of the Code, the Legislature imposed no limitation or restriction as to the method by which or witnesses by whom the handwriting” might be proven. These were left to the general rules of evidence, and the qualifications of witnesses as embodied in the common and statutory law. I am unable, therefore, to understand why a surviving, attesting witness may not establish the subscription of a will by a testator where he sees the signing done, if his testimony convinces the court of its truthfulness, and as well where the signing by the testator is by mark as by writing his name.

Now, if the authorities cited by the contestants’ counsel are sound, then this will must fail of probate, even though a subscribing witness testifies to having seen the subscription made, and yet had the execution been by a testatrix who could write her name, upon the same evidence the will could be lawfully admitted to probate. Such a construction of the statute should not be adopted as would incorporate therein such a distinction. An interpretation of the statute that requires proof of the signing by mark from some person other than a subscribing witness where as here one of the attesting witnesses is dead, is equivalent practically to requiring an execution of such a will before more than two witnesses, in order to secure its probate, and this the statute does not require.

The conclusion at which I have arrived has not been reached without hesitation, as it appears that the same is adverse to that of learned and experienced Surrogates. From the report of the case of Matter of Reynolds, 4 Dem. 68, however, it does not appear that the surviving attesting witness gave testimony of his having observed the testator make his mark, and the authority may not therefore be adverse.

The following authorities sustain the construction which should be given to section 2620 of the Code that I have adopted. Matter of Simpson, 2 Redf. 29; Matter of Dockstader, 6 Dem. 106.

Let a decree be entered admitting the will to probate with costs to the proponent.  