
    Matter of the Probate of the Will of Amelia C. Engler, Deceased.
    (Surrogate’s Court, Oneida County;
    October, 1907.)
    Wills — The testamentary instrument or act — Execution of will: In general — Sufficiency of acknowledgment; Signature of witnesses — Attestation by mark: Evidence of execution — Sufficiency of evidence.— Testimony of subscribing witnesses.
    An acknowledgment by the testatrix of Ms signature to a will is sufficient although he does not sign in the presence of the witnesses.
    
      It is not essential to the valid execution of a will that each witness sign in the presence of the other if the witnesses sign in the presence of the testator.
    Where a will, signed by the mark of the testatrix, is attested by two subscribing witnesses who sign at the end of an attestation clause that fully recites compliance with all the requisites of its valid execution, and it appears that the attestation clause was read aloud in the hearing and presence of the testatrix to one of the witnesses, and there is no proof that any one present dissented from any fact which it recited, the will should not he refused probate because such witness, after having testified that she saw testatrix make her mark, fails to remember on cross-examination that the testatrix made her mark to the will in her presence, but remembers she heard the testatrix say it was her will and although she testifies that she left before the other witness signed the will.
    Proceeding upon the probate ot a will.
    W. L. Goodier, for proponent.
    Chester W. Davis (W. F. Dowling, of counsel), for contestants.
    W. J. B. Williams, for other contestants.
   Sexton, S.

The questions to be decided arise on a regularly instituted proceeding for the probate of a will in this estate. On the return of the citation a written answer was filed, which alleged failure to comply with any of the statutory requirements, and also alleged undue influence.

The will was drawn on the usual printed blank and dated June 26, 1905, with full attestation clause, and signed by mark and attested at the end by two witnesses. Testatrix died July 16, 1907, a little over two years after she made her will.

The only evidence before me is that of the two subscribing witnesses. The evidence given by them on direct examination was sufficient to establish the will. On cross-examination, when closely pressed, they failed to remember all the details of the execution of the will. Henrietta Krubeek, one of said witnesses, testified that she did not remember that the testatrix made her mark to the will in her presence, but she heard testatrix say that it was her will and that she wanted it put in her trunk, and that witness left before the other witness signed the will. This same witness testified that she saw testatrix make her mark upon the will and heard her announce that it was her will. It is urged by ■contestants, who are half-brothers of the testatrix, that the evidence is so contradictory, and the memory of the witnesses so clouded as to what actually transpired at the time the will was executed, that probate should be denied. A substantial compliance with the statute is sufficient. Matter of Voorhis, 125 N. Y. 765.

It was not necessary for the testatrix to have signed the will in the presence of both witnesses, as an acknowledgment of her signature is equivalent to signing in the presence of the witnesses. Hoysradt v. Kingman, 22 N. Y. 372.

Upon the evidence it appears that the testatrix knew that she was engaged in the business of making her will and, in answer to questions put to her, acknowledged the paper presented to her, in the presence of both witnesses, to be her wiH. The exact words used by her the witnesses were unable to give. Any form of language for that purpose would suffice. Coffin v. Coffin, 23 N. Y. 9.

It is not essential to the validity of a will that each witness sign in the presence of the other, provided it is signed in the presence of the testator. Willis v. Mott, 36 N. Y. 486.

The testatrix and 'both witnesses were in the same room, a small one, and testatrix was sitting near the middle thereof in an armchair, in a conscious but sick condition, and on at least two occasions made remarks regarding the will. Testatrix made no request that either witness sign; but Mr. Van Baasten, who prepared the will at the testatrix’s request and in her presence and superintended its execution, requested the other witness, Mrs. Krubeck, to sign it. This sufficiently evinces the testatrix’s request that the witness sign the will, and is a compliance with the requirements of the statute. Coffin v. Coffin, supra; Peck v. Cary, 27 N. Y. 9. Where, a "person superintending the execution of a will requests the witnesses to sign it as such, and the testator silently acquiesees, such request is sufficient. Matter of Nelson, 141 N. Y. 152. The witness Van Baasten testified that he read the attestation clause aloud, in the hearing and presence of the testatrix, to the witness Krubeck.- There is no evidence of any protest or objection to any fact recited in the attestation clause, at the time it was read, by the testatrix or any person present. Such a clause is sufficient to establish the facts therein recited. Matter of Nelson, supra,. Bare lapse of memory, or contradictions on the part of the attesting witnesses, when it is reasonably probable, from the evidence and surrounding facts and circumstances, that -the statute was complied with, furnish no legal ground for refusing probate, particularly where there is a full attestation clause which recites compliance with all of the statutory requirements.

The will by its terms gave all of testatrix’s property to her brother-in-law, Charles L. E. Frederick. It was conceded in court that testatrix had lived in the Frederick family for twenty-five years, and that testatrix had an undivided half interest in the house in which they lived. The petition shows that the testatrix’s sister, wife of said Frederick, died before testatrix, and that the real estate was worth $700 and the personal property $610. It can be assumed, from the testatrix’s long residence in the Frederick family, that their relations were friendly; hence, the disposition of her property to her brother-in-law, upon the fa.cts of this case, seems perfectly natural. No evidence of undue influence was adduced upon the trial The reasoning in Peck v. Carey, supra, fully answers all objections urged and furnishes abundant authority for admitting the will to probate. A rule of law requiring attesting witnesses to remember what took place at the time of the execution of the will, keeping in mind the mqny years that often intervene between the execution and probate thereof, would result in defeating the probate of a majority of the wills. The will is, therefore, admitted to probate.

Findings and decree may be prepared accordingly.

Probate decreed.  