
    Matter of the Probate of the Last Will and Testament of Serena D. Turrell, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed June, 1899.)
    Will — Publication of Holographic Will Necessary.
    The mandatory terms of the statute requiring testator to publish his will in no sense excepts holographic documents; and where testatrix told one of the witnesses to bring her husband to witness a " document,” which, already signed, was hurriedly produced, the paper folded so that its contents could not be seen, and both were told to sign at a place designated by testatrix under the attestation clause, part of which was concealed from view by fingers of the testatrix, neither of the witnesses reading it, and one only glancing at it, probate was refused.
    Affirmed 47 App. Div. 560, 166 N. Y. 33.
    Proceedings upon probate of a will.
    Frances W. Judge, for petitioner; De Witt, Lockman & De Witt, John H. Parsons, Louis B. Adams and Charles H. Fuller, for contestants.
   Varnum, S.

Probate of the paper alleged to be the will of the decedent is contested on the sole ground that it was not properly executed. The testatrix was an elderly woman, apparently not on cordial terms with her relatives. The will to be considered is signed by her, is in her own handwriting, and contains an holographic attestation clause, which is subscribed by two witnesses. The alleged execution of the will took place on June 28, 1897, less than two years before the proof was offered. One of the witnesses, a Mrs. Barnes, the seamstress of decedent, was told by decedent to bring her husband to witness a “ document.” On the day named, both witnesses attended. They testify in detail as to various incidents that took place in the five minutes that they and the testatrix were alone in the latter’s apartment. The “ document,” already signed, was hurriedly produced by decedent; room was made on a crowded table; the paper was folded so that its contents could not be seen, and was placed on the table before the witnesses; and both were told to sign at a place designated by testatrix under the attestation clause. The signatures were affixed and the witnesses immediately dismissed. Although it may seriously be doubted whether the witnesses at all saw the signature of decedent to the instrument, enough evidence was presented to support the inference that they did. This being so, it was not necessary for decedent to expressly acknowledge the signature, providing that the will was duly published. Matter of Mackay, 110 N. Y. 611; Mattre of Bernsee, 141 N. Y. 389; Matter of Laudy, 148 N. Y. 403. The only question, therefore, to be considered is whether the testatrix duly communicated the testamentary nature of the paper to the witnesses. Much stress is laid on the fact that the will is holographic. I am aware that this is always a circumstance to be considered as strongly indicative of the absence of fraud or imposition, and as clearly pointing the intention of the testator, and that, consequently, in such a case, the facts of which the alleged publication consists need not be so sharply scrutinized as where the testator's declarations alone are determinative of the question whether he knew the executed paper to be a will. Matter of Hunt, 110 N. Y. 278. But the courts do not go farther than this. The mandatory terms of the statute requiring the testator to publish his will in no sense excepts holographic documents, and although the danger of error in admitting them to probate may be ever so slight, none the less compliance with the statute is absolutely essential. Matter of Application of Beckett, 103 N. Y. 167, 174. What evidence have we here before us touching upon the question of publication ? The will was always called a “ document ” by the decedent. Mr. Barnes was very positive as to the preparations made for execution and as to what happened when he left the room. He could not remember whether or not the testatrix characterized the paper as her will, or made any communication indicating that such was the nature of the document, but he does remember that after signing the will he supposed it was a will by that clause.” By this he meant that he had seen a few words in the attestation clause which he glanced at out of motives of pure curiosity while signing his name. Mrs. Barnes also remembers clearly the directions of the testatrix to her and her husband to sign “ this document,” and that she “ surmised ” that she was to witness a will, although she could not say whether or not the paper was so designated by the decedent. It is unnecessary to go over the statements of these witnesses in detail. I am satisfied from all that was testified to at the hearing that the testatrix did not state to either witness that the paper under consideration was her will. At best, a mere inference or supposition not derived from any words of the testatrix, existed in the minds of Mr. and Mrs. Barnes as to the real character of the document. It is true that the directions of the statute need not be literally followed; a substantial compliance ” is sufficient. Lane v. Lane, 95 N. Y. 499. But this expression should not he loosely used. It means that the testator need not formally, and in so many words, make publication of his will. For example, a reading aloud of the attestation clause before the witnesses, a request to them to read the same, a designation of the instrument connecting it positively with prior testamentary declarations of an intention to execute it — • any of these acts would be sufficient. Matter of Nelson, 141 N. Y. 152; Matter of Beckett, supra. But whatever the attendant circumstances may be, they must be sufficiently strong to clearly show that the testamentary nature of the instrument was made known to the witnesses by the testator — that there was an unequivocal meeting of the minds between them and him — a declaration, however made, but thoroughly understood by all of them. Estate of Delprat, 27 Misc. Rep. 355, Surr. Dec. (1899), 255; Matter of Dale, 56 Hun, 169; affid., 134 N. Y. 614. It has been expressly held that it will not suffice for the witnesses to suspect, from the circumstances and occasion, that .they are affixing their names to a will (Lewis v. Lewis, 11 N. Y. 220), or to come to this conclusion from an accidental inspection of the attestation clause. Wilson v. Hetterick, 2 Bradf. 427; Walsh v. Laffan, 2 Dem. 498. In the Wilton case the will was holographic. The court held, the witness cannot be permitted to spell out a testamentary declaration by a hasty glance at a word here and there. “ The testator must know that the witnesses know the testamentary nature of the act, and vice versa; and this mutual knowledge must arise from something said, done or signified contemporaneously with the execution of the instrument.” The question to be decided is one purely of fact, with the affirmative resting on the proponent. Matter of Elmer, 88 Hun, 290; Matter of Cottrell, 95 N. Y. 329. To my mind the conclusion is inevitable that decedent failed to declare the instrument offered for probate to be her will. The proponent invokes the rule that where there has been a long lapse of time between the execution and the proof, and the witnesses have no recollection whether or not a testamentary declaration was made, then a complete attestation clause, together with the proof of suggestive attendant circumstances, will take the place of defective memories and permit of the probate of the will. Matter of Pepoon, 91 N. Y. 255; Rugg v. Rugg, 83 N. Y. 592. I am of the opinion that this rule has no application to the present case. Although both witnesses testified to a lack of recollection as to whether or not the decedent described the paper as a will, yet their memory is clear that “ document ” was the designating word, and that they merely conjectured that they were to witness or had witnessed a will. This does not indicate such a failure to remember the circumstances that the attestation clause should be called upon to assist the proponent. But even if it were otherwise, the above rule would not be applicable. An attestation clause is a certification of the facts recited therein. Matter of Cottrell, supra. The present clause begins by a recital that the will was signed and sealed on a day designated. This is clearly a misstatement so far as the witnesses are concerned, for the reason that the paper was already signed when they first saw it. An untrue recital materially affects the value of an attestation clause. Porteus v. Holm, 4 Dem. 14; Rumsey v. Goldsmith, 3 id. 494. Again in the cases where such a clause has played an important part in assisting a will to probate,.the witnesses had no recollection as to whether or not they read the-clause before signing it, and hence the presumption at once arose that, by reason of their subscription, they knew the contents of the certificate made by them. But here it affirmatively appears that one witness did not read the clause, while the other only glanced at it and did not know its full purport. Indeed, part of the clause was concealed from view by the fingers of the testatrix. This being the case, the presumption just referred to cannot arise, and the clause becomes meaningless and of no value whatever. I have considered this case from the various aspects in which it has been presented by the learned counsel for the proponent, but I am unable to see how any contention in favor of the probate of this instrument can properly be supported. Probate is, therefore, refused.

Probate refused.

NOTE ON HOLOGRAPHIC WILLS.

Generally speaking, no attestation is required. 3 Jarman on Wills, 767.

A holographic will is an instrument entirely in' the handwriting of the testator. Rankin’s Estate, 61 Cal. 468; Wilbourn v. Shell, 59 Miss. 205; Schouler on Wills, 7.

When a will entirely in the handwriting of the testator, bequeaths property to an executor, with the request to dispose thereof as indicated in a letter written at the time of the execution of the will, and such letter is dictated by testator to executor, who transcribes same, and the testaor signs it, the will is properly admitted as a holographic will, but the letter should be excluded. Matter of Shillaber, 74 Cal. 144.

The word “witness,” followed by person’s name and address, added to a holographic codicil, does not show intention to make an attested codicil. In re Soher’s Estate, 78 Cal. 477.

A will in the testator’s own handwriting, with no signature at the end, in which testator’s name appears only at the beginning of the will, although such name is endorsed, together with the words “ My will ” on the envelope containing the will, which envelope is sealed, held not sufficient as a holographic will under the Virginia Code. Warwick v. Warwick, 6 L. R. A. 775.

A letter from a soldier in actual service may be proved as a holographic will. Bottsford v. Krake, 1 Abb. Pr. (N. S.) 112.

While holographic ■wills are not excepted from the terms of the statute requiring and prescribing the method of publication, criticism of the terms and manner of what is claimed to be a sufficient publication need not be so close or seyere as where the question as to whether the testator knew that he was executing a will depends solely upon the fact of publication; a substantial compliance with the statute is sufficient. In the Matter of Beckett, 103 N. Y. 167.

The Statute of Wills makes no exception with respect to a holographic will, in its requirements as to execution, and some substantial compliance with the formalities prescribed for its proper publication is necessary; and where an instrument, signed and attested, is offered for probate as a will, and it appears that it is in the handwriting of the testatrix, but that she did not sign it in the presence of either of the attesting witnesses, nor acknowledge to either of them that it had been subscribed by her, nor at any time declare in the presence of either of them that the instrument was her will, nor in any way communicate to them that it was her will or an attempted testamentary disposition of her property, probate is properly denied. Matter of Turell, 166 N. Y. 330.

In a proceeding for the probate of a holographic will, which was subscribed by three witnesses and contained no formal attestation clause, it appeared that the testator subscribed his name to the will prior to the witnessing of the will, but not in the presence of the witnesses. Only two of the subscribing witnesses testified in the proceedings on probate and neither of these witnesses saw the testator affix his signature thereto. One of them testified that the testator stated to both of them that the instrument was his will and requested them to sign as witnesses, which they each did in his presence and in the presence of each other; such witness also swore that at the time he signed the will he saw the testator’s signature attached thereto; the third subscribing witness was not present at the time of the execution of the will by the testator and the other two witnesses. Held, that the evidence established a substantial compliance with the statute concerning the subscription, acknowledgment and publication of wills. Matter of Akers, 74 App. Div. 461.

When a will is holographic, the required evidence of publication may be somewhat relaxed, such publication must be shown, and a declaration of a testator that an instrument is his will, not made to the witnesses at the time of execution, is not the publication required by the statute. Matter of Moore, 109 App. Div. 462.

Where many circumstances attending the execution of a holographic will and a holographic codicil, both having holographic attestation clauses, indicated compliance with the Statute of Wills, the court admitted the paper to probate, although the subscribing witnesses testified, seven years after the fact, that the testator neither subscribed the papers in their presence nor acknowledged to them subscriptions, theretofore made, as subscribed by him. Matter of Carll, 38 Misc. 471.

A holographic will, lacking an attestation clause, was admitted to probate on proof that the testator stated to the first witness that he had written out a paper so that his matters could be attended to in case anything happened to him, that he had written the entire paper, and that he requested the witness to sign the same as a witness, and further that he declared to the other witness, not present with the first witness, that he had made a will, that he had written out the same and that he requested this witness to sign as subscribing witness. Matter of Palmer, 42 Misc. 469.

A holographic will held to be legally established on proof of the handwriting of testator. Davis v. Williams, 57 Miss. 843.

In Tennessee, the writing must come from unsuspected custody, or be found among the papers of testator, in order' to be valid without signature. Tate v. Tate, 11 Humph. (Tenn.) 465.

An incomplete holographic will, not subscribed, though containing testator’s name in body, held inadmissible. Waller v. Waller, 1 Grat. (Va.) 454.

A holographic will, with the testator’s name in the body thereof, but not subscribed, held to be well executed. Adams v. Field, 21 Vt. 256.

In Wyoming two witnesses to a holographic will are necessary. Neer v. Cowhick, 4 Wyo. 49.  