
    In the Matter of the Probate of the Last Will and Testament of Matthew S. Marley, or Morley, Deceased. Edwin Buchman and Helene Marley, Appellants; William G. Marley and Others, Respondents.
    Third Department,
    November 16, 1910.
    Will — execution — probate against testimony of subscribing witness — proof of due publication and request to witness to sign.
    The probate of a will should not be refused because the testator chanced to select forgetful or untruthful witnesses. Hence, if the circumstances surrounding the execution of an instrument show that it was duly executed as a will it may be admitted to probate against the testimony of all the subscribing witnesses, or upon the testimony of one and contrary to the testimony of the other.
    A finding that a testator acknowledged his signature and properly declared the instrument to be his will when requesting a witness to sign as such is justified where it appears that the testator, having formerly witnessed a will executed by the witness, said to him on producing a will in his own handwriting and subscribed by him: “I would like you to sign this paper. This is the same kind of a paper that you asked me to sign for you,” if the witness testifies that he understood that the testator asked him to sign his last will as a subscribing witness and he did sign directly under the attestation clause in the testator’s presence and saw and recognized his signature with which he was familiar.
    The purpose of requiring a testator to declare the instrument to he his last will and testament is to make certain that he knows that he is executing such an instrument, not one of another kind, and hence the statutory requirements as to publication are not so strictly enforced where the will is holographic.
    On proceedings to probate a will one of the witnesses testified that he did not sign a will but a sheet of unfolded paper upon which there was no other writing whatever. He acknowledged, however, the genuineness of his signature to the instrument presented for probate, which signature appeared under that of the other witness át the foot of the attestation clause. In the light of all the circumstances, held, that a decree denying probate should be reversed and the issues submitted to a jury.
    Kellogg and Cochrane, JJ., dissented.
    Appeal by the petitioner, Edwin Bachman and another, from a decree of the Surrogate’s Court of Rensselaer county, entered in said Surrogate’s Court on the 4th day of June, 1908, denying probate to a paper propounded as the last will and testament of Matthew S. Marley, or Morley, deceased.
    
      
      Clarence E. Akin, for .the appellants.
    
      Scott & Tiffany, for the respondents.
   Houghton, J.:

The paper propounded as the last will and testament of Matthew S. Morley, or Marley, deceased, is wholly in his handwriting, including the attestation clause, and it is undisputed that his signature appears at the end and that the signatures of two witnesses follow the attestation clause. On its face it appears to be a properly executed will.

Although the learned surrogate wrote no opinion and made very broad findings against the due execution of the paper as a last will and testament, he manifestly denied probate on the ground that the alleged testator’s signature which had been previously affixed, was not exhibited to the witnesses and acknowledged by him as such at the time of the witnessing and execution.

The two witnesses whom the alleged testator selected were his friend Buchman, whom he named as executor, and his nephew Clayton E. Marley. Marley testified on the hearing for probate that his signature which appears directly under that of Buchman at the foot of the attestation clause was genuine, but that when he signed his name the testator asked him to sign a paper saying nothing about the witnessing of a will, and that he put his signature to a clean sheet of unfolded foolscap paper upon which there was no writing whatever and upon which the signature of Buchman did not appear. This testimony is so preposterous that it cannot be regarded as truthful by any court, and presumably the surrogate did not believe it. The bare fact that his genuine signature appears at the foot of the attestation clause and under that of Buchman contradicts his story and outweighs his evidence.

While the statute (2 R. S. 63, § 40; now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 21). requires certain formalities in the execution of a will such an instrument is not to be defeated because the testator chanced to select forgetful or untruthful witnesses. If the circumstances surrounding the execution of a paper show that it was executed as a last will and testament it may be admitted to probate against the testimony of all the subscribing witnesses (Matter of Cottrell, 95 N. Y. 329), or upon the testimony of one and contrary to the testimony of the other. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422.)

Eliminating the testimony of the witness' Harley, it becomes necessary, therefore, to analyze the testimony of the other witness Buchman and determine whether or not sufficient appears from his evidence to justify the finding that the testator acknowledged his signature to the instrument and properly declared it to be his will when he requested him to sign it as a witness. Buchman and the deceased had long been intimate friends. Some time before the attempted execution of the paper by the deceased, Buchman had made his will and had asked the deceased to subscribe it as a witness, which he did, and the occurrence was clearly remembered by ' noth. After the deceased had prepared and signed the paper in question he presented it to Buchman and said: “ I would like you to sign this paper. This is the same kind of a paper that you asked me to sign for you.” The witness testifies that he understood the deceased to ask him to sign his last will and testament as a subscribing witness, and that he did sign the paper directly under the attestation clause in testator’s presencb, and saw and recognized the testator’s signature, with which he was perfectly familiar, at the time of so doing.

We are of opinion that what took place was a sufficient publication, acknowledgment of signature and request to sign as a witness to meet the requirements of the statute. The requirements of the statute as to the publication of wills which, are holographic are not so close or severe as where the question whether the testator knew he was executing a will depends solely upon the fact of publication. Where a testator produces a holographic instrument and declares to a witness that it is the paper which the testator had previously spoken to the witness about witnessing, and which previous conversation referred to the making of a will which the testator desired the witness to attest, it is a good publication and request. (Matter of Beckett, 103 N. Y. 167.) If such a publication and request be good, the publication and request in the present case was amply sufficient. There can be no question but what the testator desired to execute his will and to comply with the law in so doing. When the testator told the witness that he wanted him to sign the same kind of a paper that he had signed for liim, both the testator and the witness clearly understood that the paper referred to was the will of the witness which the testator had attested. So far as the understanding between them was concerned, the publication and request was as compléte as though the testator had declared the instrument in the most solemn manner to be his last will and testament, and requested Buchman to sign as a subscribing witness thereto: The purpose of requiring the declaration of a testator that

the instrument is his last will and testament is to make it certain that he knows he is executing such an instrument and not one of some other kind. (Trustees of Auburn Seminary v. Calhoun, supra.) This purpose of the statute was entirely fulfilled by what took place when Buchman signed as a subscribing witness to the instrument in question. Although the alleged testator did not declare his signature at the end of the instrument to „be his, and said nothing concerning it, there was in law an acknowledgment of his signature by him. Where a testator produces a previously signed will, and particularly a holographic will, and requests the witnesses to attest it as his last will and testament, and especially if they observe and recognize his signature, there is a sufficient acknowledgment of such signature and subscription by him. (Matter of Akers, 74 App. Div. 461; affd. on opinion below, 173 N. Y. 620 ; Baskin v. Baskin, 36 id. 416; Matter of Hunt, 110 id. 278 ; Dewey v. Dewey, 1 Metc. 349.)

The testimony of the witness Buchman, therefore, made aprima facie case entitling the will to be admitted to probate, providing it can be assumed from the surrounding facts and circumstances that there was a publication of the instrument as to the other witness Marley, and a request that he sign as a subscribing witness. If the witness Marley were dead, there would be no difficulty in assuming that the formalities of the statute were complied with so far as he was concerned. While the attestation clause is complete, it appears from the testimony of Buchman that it is not entirely accurate, for it recites that the will was subscribed in the presence of the witnesses, whereas it should have stated that the signature was acknowledged. The instrument being already signed when Buchman was requested to witness it, it must have been signed when Marley was requested. Its production by the alleged testator so signed with a request to witness being equivalent to an acknowledgment of signatare, the only proof necessary, notwithstanding the denial by the witness Harley, is whether the deceased did in fact state to Harley that it was his will and request him to sign it as a subscribing witness. Ordinarily, proof that the requirements of the statute were observed in the execution of a will comes from the testimony of the subscribing witnesses, if they be living and their testimony can be procured; but the fact that such requirements were observed may be proved by other evidence, the same as any other question of fact-may be established. (Matter of Cottrell, supra.) The surrounding circumstances are sufficient contradiction of the positive testimony of Harley to make a question of fact and to justify a finding that the testator did declare the instrument to be his will and request him to sign it as a subscribing witness. The deceased was a man of intelligence and acquainted with business affairs. The will is in due form, and the attestation clause immediately following his own signature is full and accurate, except in the particular referred to. When he wrote it, he either knew what formalities in the execution of a will were necessary, or, in copying it from a form, he was apprised of the requirements of the statute. The most of liis life he had been a bachelor, but had recently married and presumably knew that his real estate would not pass to his wife without a will to that effect. The body of the will shows care in its preparation and acquaintance with legal phraseology. Evidently there was some question as to the spelling of his name either in the deed of his house and lot or in the insurance policy which he mentioned, and he took pains that there should be no complications on that score, and described himself, not only in the will but by his signature, as either “ Morley ” or “ Harley.” He selected and used the word devise with respect to his house and lot. All the circumstances show beyond question that he had gone about the business of executing a will with deliberation and care and forethought, and in some manner had acquired knowledge of the formalities required by statute in its execution. The paper was kept by him amongst his valuable papers. On its face it is entirely regular and conclusively refutes the statement of Harley that when he signed his name he did so to a blank piece of paper upon which there was no writing whatever, because his signature is directly under the attestation clause, and under that of Buchinan, the other subscribing witness. If the witness is untruthful as to where his signature was placed, as he manifestly is, there is no reason why he should not be deemed untruthful when he says that the testator did not say that the paper was his will and request him to sign it as a subscribing witness.

In our opinion the decree denying probate should be reversed and the material questions passed upon by a jury.

The decree should be reversed and a new trial granted before a jury upon issues to be framed, with costs to the appellant against the respondents to abide the event.

All concurred, except Kellogg and Cochrane, JJ., dissenting.

Decree of the surrogate reversed; trial directed of the material questions of fact before a jury, with costs to appellant against the respondents to' abide the final event. Issues to be settled on notice.  