
    SUPREME COURT.
    John M. Smith, and others agt. Mott D. Smith, and others.
    Where the testratrix, the drafts-man of the will, whom she had employed to draw it, and two witnesses, all being present when the testratrix signed the will and acknowledged it to be her last will, &c., and the drafts-man then requested the witnesses to sign?
    
      Meld, that the request being made in her presence, it was in law, her request, and the signing of it by the witnesses on such request, rendered its execution valid. (The surrogate’s opinion, which this decision reverses, is reported ante page 124.)
    
      Second District, General Term, February, 1870.
    
      Present, Barnard, P. J., Gilbert, Tappen, and Pratt, Justices.
    
    Appeal from the decision of the surrogate of Queens county, denying the probate of the will of Mary Smith, deceased. The facts of the case and the opinion of the surrogate are reported, ante, page 124.
    Ralph E. Prime and J. J. Armstrong, for appellants.
    
    Benjamin W. Downing, for respondents.
    
   By the court, Barnard, P. J.

I think the evidence fully proves that the attesting witnesses at testatrix’s request, subscribed their names to the will in question. The will was drawn by Samuel Willetts, a justice of the peace, who was accustomed to draw wills. The testatrix, the two witnesses and Willetts were present at its execution. The testatrix, in the presence of the witnesses and of Willetts, signed her name to the will, she then in reply to a question put to her by Willetts, acknowledged the instrument to be her last will. This acknowledgment was in the presence of the witnesses. The drafts-man of the will then said to one of the witnesses, u now Mr. White,” and handed him the pen in the presence of all. White signed as a witness, and handed the pen to the other witness. He signed also in the presence of all. The attestation clause is full. The will was found in the possession of testatrix at the time after her death. All the parties present knew what the paper was. It was duly published. The witnesses signed, knowing what paper they were, attesting. Mrs. Smith was present when they signed, and made no objection. Willetts whom she had employed to draw the will, requested the witnesses to sign, and the request being made in her presence, it was in law, her request.

The decision of the surrogate should be reversed, and the question tried by a,.jury at a circuit court, to be held in the County of Queens.

The case was tried at the October circuit, 1870, in Queens county, when the jury found on all the points at issne in favor of sustaining the execution of the will, and against the decision of the surrogate.  