
    In the Matter of the Last Will and Testament of Ellen Van Geison. Dec’d.
    
      (Supreme Court General Term, Fifth Department,
    
    
      Filed January 20, 1888)
    
    1 Wills—Probate of—What necessary to entitle a will to probate —2 R. S. part 2, ch 6, tit. 1, art. 3, § 40—Proof necessary that it WAS SUBSCRIBED BY TESTATOR.
    It is provided by 2 R. S part 2, ch. 6, tit. 1, art. 3, § 40, that every last will and testament of real or personal property, or both, shall be executed and attested in the following manner : It shall be subscribed by the testator at the end of the will, and such subscription shall be made-by the testator in the presence of each of the attesting witnesses, or shall be acknowi edged by him to have been made, to each of the attesting witnesses. That the testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament, and that 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. In order to admita will to probate e ch of these requirements must be satisfactorily proved by at least two of the subscribing witnesses, if so many are within the state and competent and able to testify. Code Civ. Pro., § 2,618. Held, that in order to admit the will to probate it must be proved that it was subscribed by the testator.
    2. Same—When wills not entitled to probate—Declaration of will DOES NOT SATISFY REQUIREMENT THAT IT BE SUBSCRIBED BY TESTATRIX.
    
      IIclJ That there being no proof that the will was subscribed by the - testatrix in the presence of each of the witnesses, or that she acknowledged to each oi the witnesses that the signature at the end of the wall was hers, pi ool Ci her declaration and publication of the instrument as her will was Insufficient to entitle it to probate.
    
      Appeal from a decree of the surrogate’s court of Monroe county, refusing to. admit will to probate.
    
      P. B. Hulett, for app’lt; John Desmond, for resp’t.
   Haight, J.

Ellen Van Geison was a resident of the town of Parma, Monroe county, and died on the 19 th day of January, 1887, at the age of eighty-five years. The instrument offered for probate as her last will and testament is in the handwriting of Vincent M. Smith, an attorney of this court, who died prior to Mrs, Van Geisen.

Her name at the end of the will with the words “ Her mark,” is in the handwritting of V. M. Smith, whose name is signed as witness to her mark. The attestation clause at the end of the will is in the usual form signed by Leman S.

, Wolcott and Vincent M. Smith. Upon the hearing before the .surrogate evidence was given of the death of Mr. Smith, and that his name as written as the witness and to the attestation clause was in his handwriting. Wolcott, the other subscribing witness, was sworn and testified to his own signature, that Mrs. Van Geison told him that-it was her last will and testament, and that she told him how she had made it. But he further testified that she did not tell him that she signed it; that she never told him she signed it; that he did not see her sign it; that he knows he did not see her sign it. Upon this evidence the case was submitted to the surrogate, who refused to admit the instrument to probate as a will.

The statute provides that “Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner :

First. It shall be subscribed by the testator at the end of the will. ,

Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been made, to each of the attesting witnesses.

Third. The testator at the time of making such subscription, or at the time of acknowledging the same, shall declare, the instrument so subscribed to be his last will and testa ment.

Fourth. 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., part 3, chap. 6, title 1, art. 3, sec. 40.

In order to admit a will to probate, each of these requirements must be satisfactorily proved by at least two of the subscribing witnesses, if so.many are within the state and competent,and able to testify. Code of Civ. Proc., § 3, 618.

If all the subscribing witnesses are, or if any one is dead or incompetent to testify, etc., “ the will may nevertheless be established upon proof of the handwriting of the testator, of the subscribing witnesses, and also on such other circumstances as would be sufficient to prove the will upon the trial of an action.” Section 2620.

The circumstances under which a will may be proved upon the trial of an action are provided for by section 1861 -of the Code, none of which have any application to the case under consideration. It was therefore necessary in order to establish this will, that the signature of the testatrix should be proved. This could be done by any person who saw her make her mark, or by her acknowledgement that she had so executed the will to each of the subscribing witnesses. As we have seen the only evidence upon this subject is the fact of her publication of the instrument by declaring it to be her last will and testament. The question is therefore, is this a compliance with the statute as an acknowledgement of her subscription to the will I

In the case of Mitchell v. Mitchell (16 Hun, 97), the testator said to the witnesses: • That is my will; I want you to witness it.” The witnesses 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.” 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 not having been signed in the presence of the witnesses, there was not a sufficient acknowledgment to them that he had signed it, to satisfy the requirement of the statute, and that the paper was not entitled to be admitted to probate. This case was affirmed in the court of appeals, 77 N. Y., 596.

In the case of Lewis v. Lewis (11 N. Y., 220), the testator called the subscribing witnesses into his private office, where he produced a paper which was folded in such a manner as only to allow space for them to write their names; he requested them to sign the same and add their residence to their respective names ; after they had done so, he said, “I declare the within to be my free will and deed.” It was held that that was not a sufficient acknowledgment of the subscription to the will to entitle it to probate; that the acknowledgment by the testator of the subscription, and his declaration that it is his will, are independent requieites to its proper execution, and that it must be shown that each was complied with. See, also, the The Sisters of St. Vincent de Paul v. Kelly (67 N. Y., 409); Orser v. Orser (24 N. Y., 51); Baskin v. Baskin (36 N. Y., 416-419); the probate of the paper propounded as Edward Walsh's Will (1 Tucker, 132). In the matter of the will Potter Austin, deceased (9 N. Y. State R., 678), there was proof that the will was signed by the deceased.

Under these authorities it appears that the publication of the will is not a sufficient compliance with the requirement of the statute ; that it must be subscribed in the presence, or acknowledged to have been so subscribed, to them ; and in the absence of evidence of the handwriting of the testator the instrument is not entitled to probate.

It follows that the decree of the surrogate should be affirmed, but without costs, of this appeal to either party.

So ordered.

Parker, P. J. and Bradley, J. concur.  