
    In the Matter of Will of Orville Elmer, Deceased.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Appeal — Surrogate.
    The finding of a surrogate, on conflicting evidence, in regard to the question whether a will was executed as required by the statute, will not be disturbed on appeal.
    Appeal from a decree, denying probate of a will.
    
      H. W. Coley, for app’lt; Timothy Curtin, for resp’ts.
   Martin, J.

— The only question which seems necessary to be determined on this appeal is whether, under the proof, the alleged will of the decedent was properly and legally executed. The statute relating to the execution of wills of real and personal property provides:

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

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

2. 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.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so described, to be his last will and testament. 4. 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. ” Rev. St. (8th. ed.) p. 2547, § 40.

The learned surrogate before whom this proceeding was had found as facts:

“ That the decedent did not exeéute the proposed will in the presence of the subscribing witnesses; that the will was not signed by him in the presence of the subscribing (witnesses) Greorge E. Wright and Charles E. Arnold; that he did not declare it to be his last will and testament to the subscribing witnesses ; that he did not acknowledge the signature to the said instrument to be his signature, to the subscribing witnesses, and that the attestation clause to said will was not read over to the subscribing witnesses, or either of them, and that neither of the subscribing witnesses read the same; that the decedent did not request the subscribing witnesses, Greorge E. Wright and Charles E. Arnold, to subscribe said paper as a witness; and that the will propounded was not executed according to the requirements of the statute.” '

As a conclusion of law, the surrogate’s court held that the paper propounded as the last will and testament of Orville Elmer, deceased, was not properly or legally executed; that the same was invalid and void as such; and that it was not the last will and testament of Orville Elmer, deceased. The court also held that the alleged will should not be admitted to probate, and that the decedent died intestate, leaving no last will or testament. A careful examination of the evidence contained in the appeal book renders it quite manifest that the learned surrogate was justified in finding that the alleged will of the decedent was not executed according to the requirements of the statute. While the evidence of the subscribing witnesses was perhaps contradictory, and the circumstances attending the execution of the will somewhat uncertain, yet, in view of the proof and circumstances disclosed, it is quite clear that the question as to whether the will was properly executed as required by the statute was a question of fact, to be determined by the surrogate’s court. As was said by Ruger, C. J., in Re Cottrell’s Will, 95 N. Y. 329, 336:

“The determination of the question of fact involved in the inquiry as to whether a will has been properly executed or not is governed by the same rules which control in the trial of other questions of fact. The proponent has the affirmative of the issue, and if he fails to convince the trial court, by satisfactory evidence, that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will.”

We are of the opinion that the findings of the learned surrogate were justified by the evidence, and that his decision refusing probate of the proposed will is sustained by authority. Lewis v. Lewis, 11 N. Y. 220: Mitchell v. Mitchell. 16 Hun, 97; affirmed, 77 N. Y. 596; Wooley v. Wooley, 95 N. Y. 231; In re Will of Mackay, 110 id 611; 18 St. Rep. 558; In re Van Geison, 47 Hun, 5; 14 St. Rep. 117. It follows that the decree of the surrogate’s court should be affirmed.

Decree affirmed, with costs to the respondents, payable out of the estate.

All concur.  