
    In the Matter of the Probate of the Last Will and Testament of Elizabeth Jane Abercrombie, Deceased. John Abercrombie, Respondent; Elizabeth M. Stewart and Others, Appellants.
    
      Will — insufficient proof of execution.
    
    A will which, although declared by the testatrix to be her last will, was not subscribed by her in the presence of either of the attesting witnesses, neither of whom saw her signature to it, and only one of whom is able to testify that she acknowledged to him that she signed it, does not sufficiently comply with the provisions of the statute (3 R. S. *63, § 40) relative to the proper execution, of wills.
    Appeal by the contestants, Elizabeth M. Stewart and others, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 3d day of March, 1897, admitting to probate the alleged last will and testament of Elizabeth Jane Abercrombie, deceased.
    
      A. Frank Jenks, for the contestants and appellants.
    
      H. G. Pierce, for the proponent and respondent.
   Adams, J.:

The question presented by this appeal relates to the sufficiency of the execution of the instrument presented for probate, and more especially to the formality of its publication.

There is little or no controversy as to the facts, but it appears that, while the decedent had undoubtedly subscribed the paper purporting to be her will, she did not do so in the presence of either of the attesting witnesses. Both of these witnesses testify that the decedent declared the paper to be her last will, and one of them also states that she. said she had signed it, but neither of them claims, nor is it pretended, that the signature was ever seen by them. Upon this state of facts the surrogate found that the instrument in question was the last will and testament of the deceased, and that as such it was entitled to be admitted to probate. In this conclusion we are unable to concur for reasons which will be stated with as much brevity as possible, inasmuch as the question to be considered can hardly be regarded as an open one in view of the authorities to which reference will be made later on.

It is a statutory requirement that every last will and testament of real and personal property shall be subscribed by the testator at the end thereof; and that 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 so made to each of the attesting witnesses.” (2 R. S. 63, § 40.)

This statute was enacted to guard against fraudulent interference with the wills of deceased persons, and although there is an absence of any element of fraud in this case, we must nevertheless be governed in the disposition to be made of it by the provisions of the statute above quoted which are intended for general and not special application. (Sisters of Charity v. Kelly, 67 N. Y. 409, 416; Matter of O'Neil, 91 id. 520; Matter of Whitney, 153 id. 259.)

It has been held, it is true, that a substantial compliance with the statute prescribing formalities to be observed in the execution of wills is sufficient, as where the words of request or acknowledgment proceed from a third party, but in the presence of the testator and under circumstances tending to show that they were adopted by him (Gilbert v. Knox, 52 N. Y. 125 ; Matter of Van Voorhis, 125 id. 765); or where, as in the present case, the name of one of the attesting witnesses was signed by his co-witness. (Matter of Strong's Will, 16 N. Y. Supp. 104.)

But this rule will not aid the respondent’s contention, because it can hardly be claimed, in the circumstances of this case, that the instrument in question was executed in substantial compliance with the provisions of the statute. As we have seen, it was not signed in the presence of the attesting witnesses, nor did either of them ever see the signature, if there was one, and but one of them is able to state that the deceased in any manner acknowledged having attached her name to the paper.

Now, it is the subscription, and not the instrument, which the statute requires to be acknowledged; and a signature which is neither seen nor identified can in no proper sense be said to have been acknowledged by the mere statement that it had been affixed to a paper which was characterized as a will. (Ilott v. Genge, 3 Curt. Ecc. 160 ; Chaffee v. Baptist Missionary Convention, 10 Paige, 85; Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; affd., 77 N. Y. 596 ; Matter of Mackay, 110 id. 611 ; Matter of Laudy, 148 id. 403.)

In the case last cited there was thought to be a conflict of evidence respecting the subscription of the decedent’s name to the instrument in question, and the issue of fact thereby presented was ordered tried before a jury. Upon the trial which was subsequently had, one of the attesting witnesses did not claim to have seen the signature of the decedent, but the other testified that while the instrument was evidently so folded as to prevent his seeing what was written, he had, by reason of the accidental raising of the edge of the fold, observed some writing which he could not read where the decedent’s signature was said to have been written. It further appeared that the decedent had in fact signed the instrument, and the evidence was sufficient- to warrant the inference that she declared to the witnesses that she had subscribed the same. The jury found that the subscription of the deceased was acknowledged by her to each of the witnesses, and the trial court adopted their verdict; but upon apjieal it was held by the Appellate Division in the first department that the evidence was insufficient to sustain the finding that there had been a proper acknowledgment within the statute, and a new trial was granted. (Matter of Laudy, 14 App. Div. 160.)

We think the evidence of acknowledgment in the case cited was quite as favorable to the proponents as is that in the present case; and if it was insufficient to answer the requirements of the statute, we do not see how the conclusion of the learned surrogate in this case can be sustained.

The decree of the surrogate should be reversed and a rehearing had, with costs to abide the event.

All concurred.

Decree of the Surrogate’s Court reversed and a rehearing ordered, with costs of this appeal to the appellant, payable out of the estate, to abide the event.  