
    In the Matter of the Proof of the Will of Roselia S. Look, Deceased.
    
      Supreme Court, Fifth Department, General Term,
    
    
      October 19, 1889.
    1. Will’s execution.—Where a testatrix signed her will in the presence of one witness, and declared it to he her will in the presence of both witnesses, who signed it as such at her request, it is a sufficient acknowledgment of her signature to comply with the statute.
    2. Same.—Where the statutory formalities have been observed, the valid execution of a will does not depend upon the correctness of the vision or the degree of the attention of the witness.
    3. Same.—No attestation clause is required by the statute.
    
      4. Same.—The limitation of a bequest to a charitable institution only, to the precise use for which the donee was incorporated, does not invalidate the gift.
    Appeal from a decree of the surrogate of Chautauqua county admitting the will to probate.
    
      H. Aplington, for contestants, appellants.
    
      Sherman S. Rogers, for proponents, respondents.
   Dwight, J.

The only requirement of the statute which the appellants contend was not complied with in the execution and attestation of this will, is that of the acknowledgment of the subscription of the testatrix to both of the attesting witnesses. 2 R. S., 63, § 40. The will was subscribed by the testatrix in the presence of one of the attesting witnesses; was declared by the testatrix in presence of both witnesses to be her last will and testament, and the two witnesses subscribed it as such, at her request. We think the case is fairly within the authority of the decision in the Matter of Higgins, 94 N. Y. 554. In that case the will was executed in the presence of neither of the witnesses, but was exhibited to both for their attestation. One of them, Stoker, testified that the signature of the testator was specifically acknowledged to both; the other, Jones, that the acknowledgment was of the instrument as the testator’s last will and testament. The court, after remarking upon the effect of Stoker’s testimony said, “ aside from what has already been remarked, we think that the testimony of Jones, who swore positively that the testator acknowledged the will to be his last will and testament, was an acknowledgment of his signature and sufficient, with the other evidence given by him, to establish a due-execution of the will. The signature was plainly visible upon the instrument itself, and the testator having requested Jones and Stoker to subscribe their names to it as witnesses, and he having acknowledged the same to be his last will and testament, the statute was fully complied with in this respect within the decisions of the court.” To the same effect was-the much earlier case of Baskin v. Baskin, 36 N. Y. 416, which was curiously like this case in the details of its facts, and the same doctrine has been applied in several subsequent cases. See Matter of Will of Phillips, 98 N. Y. 267; Matter of Austin, 45 Hun, 1; Matter of Trenor, 18 N. Y. State Rep. 807.

In the case of Higgins, supra, it will be observed the court-refer to the fact, as important, that the signature was plainly visible to the attesting witnesses on the face of the will, and such was the fact here. It was directly over and less than one inch removed from that of Mrs. Clarke, the second witness. The referee finds that Mrs. Clarke saw the signature of the testatrix. Mrs. Clarke says she did not. She-had left her glasses at home, and, for the purpose of signing her name, she borrowed the glasses of the other witness, Dr. Chase. She says : “I could not see very well with the doctor’s-glasses and did not see the signature to the will when I signed it; didnotsee it with those glasses.” And yet she saw sufficiently well to write her own name, in unusually small characters, and very carefully, on the line which was pointed out for her signature. The doctor’s glasses, therefore, if not precisely fitted to her eyes, did not have the effect of intercepting her sight, and the signature of the testatrix was within the field of her vision. As a proposition in optics, then, it may be said that she saw the signature. To see is to receive a visual impression of an object upon the retina of the eye. That impression must have been made upon the eye of the witness; because there was the object and the eye, and the rays of light passing, unobstructed, from the one to the other. That impression may not have been recognized by the consciousness, or it may not have been retainedin the memory, but the signature was seen in the sense of having been exhibited to the sight of the witness, and tins seems to be all that the statute requires to be done in connection with the acknowledgment of the signature by the testator.

It is to be observed that the first three subdivisions of the statute prescribe certain formalities to be observed by the person executing the will and make no requirement of the witnesses. These formalities are: (1) a subscription by the testator; (2) made or acknowledged in presence of witnesses ; (3) a declaration that the instrument is his last will and testament. It would seem, on principle,'and we think the authorities cited support the proposition, that these formalities being observed, the valid execution of the will does not depend upon the correctness of vision or the degree of attention of the witness any more than .upon the retentiveness of his memory.

It is urged that this case is distinguished from those cited by the fact that in each of the latter there was an attestation clause, and here there was none. But the statute does not mention or require an attestation clause. The use of such an appendage to a will has grown up as a convenient means of refreshing the memory of the attesting witnesses in respect to the formalities actually observed in the execution and publication of the will .to which it is attached. We know of no authority for the position that such a memorandum, of itself, furnishes any evidence of the facts, and if it creates any presumption in aid of the testimony of the witnesses, the cases cited do not rest upon the effect of any such evidence ■or presumption.

The case of the Will of Mackay, 110 N. Y. 611, relied upon by the appellants, is distinguished from this in the precise respect here discussed, viz., by the fact that in that case the signature of the testator was never exhibited to the witnesses, but (if it .existed at that time) was concealed from their view; and the court say in that case: “ There would have been a formal execution of the will, in compliance with the statute, if the witnesses had, at the time, seen the signature of the testator to the will; ” although in that case, as in this, there was no specific acknowledgment of the signature by the testator, but only that the paper was his will. So in the case of In re Gunstan Blake v. Blake, L. R., 7 Probate Div. 102, the present master of the rolls said; “ When the signature is there and they (the witnesses) see, or have the opportunity of seeing it, then if the testator says this is my will, or words to that effect, that is sufficient acknowledgment, although he does not say “ this is my .signature.”

We think the surrogate was right, under the authorities, in holding that the evidence established a valid execution of the will in question.

The only question remaining relates to the validity of a bequest in the will to the American Bible Society. The bequest was in the following terms:

Third. After the payment of all my just debts and funeral expenses, * * * I give and bequeath all the residue of my property to the American Bible Society, * * * to be used by said society for the promulgation of the Holy Bible.” '

■ We are asked to hold that this bequest was void, as being a gift in trust, without a definite or ascertainable beneficiary capable of enforcing the trust.

The answer to this proposition is that the gift was limited Toy the donor only to the precise use for which the donee was incorporated. Laws of 1841, chap. 68. Such a limitation does not invalidate the gift. Wetmore v. Parker, 52 N. Y. 450, 458.

The decree of the surrogate should he affirmed.

Decree affirmed, with costs to the respondent to be paid out of the estate.

Barker, P. J., and Macomber, J., concur.

Note on “Execution of Will.”

No particular form of words is required to effect the publication of a will. Matter of Hunt, 110 N. Y. 278. A substantial compliance with the requirements of the statute, prescribing the mode of execution and attestation, is sufficient. Id.; Lane v. Lane, 95 N. Y. 494 ; Matter of Beckett, 103 Id. 167. If, in some way or manner, the testator indicates that the instrument which the witnesses are requested to subscribe, as such, is intended and understood by him to be his executed will, there is a substantial compliance. Matter of Hunt, ante ; Matter of Phillips, 98 N. Y. 267.

The substantial compliance with the statute, prescribing the formalities to be observed in the execution of wills, is sufficient. Matter of Voorhis, 125 N. Y. 765; aff’g 54 Hun, 637.

The will in this case was held to be fully proven ih formal essentials, capacity and freedom from restraint. Matter of Watson, 58 Hun, 608.

The facts, in this case were held to establish the due execution of the will. Matter of Eilers, 55 Hun, 697; Matter of Lyddy, 53 Hun, 629; Matter of Wilcox, 59 Hun, 527.

It is a sufficient subscribing, if the testatrix’ signature is made in the presence of both witnesses. Matter of Bedell, 32 N. Y. St. Rep. 1022.

The will, in this case, was held not to be executed by a subscription at the end thereof as required by the statute. Matter of Conway, 124 N. Y. 455; rev’g 58 Hun, 16.

The intention of the legislature, and not of the testator, controls the question of execution. Id.

A will must be declared to be such at the time of either its execution or acknowledgment. Matter of Dale, 56 Hun, 169.

An acknowledgment by the testator of making his signature will not supply an omission to sign the will. Matter of Booth; Timothy v. Booth, 127 N. Y. 109.

In Lockwood v. Lockwood, 51 Hun, 337, the will was held not to have been executed in accordance with the laws of the State of New York.

The efforts of next of kin for destruction of a will furnish no proof of its publication. Matter of Dale, 56 Hun, 169.

As to what proof is necessary to establish the execution of a will against the contrary testimony of a subscribing witness, see the case cited last •above.

Where a grave doubt as to testatrix’ mental condition exists, the proof must be conclusive that the attorney’s declaration as to publication and witnesses, were intelligently accepted by her. Matter of Coop,, 24 N. Y. St. Rep. 417.

The declaration “this is my will, take it and sign it,” does not establish the execution of an unsubscribed, holographic will. Matter of Booth; Timothy v. Booth, 127 N. Y. 109; aff’g 57 Hun, 5S7.

As to what is a sufficient acknowledgment of the subscription to comply with the statute, see Matter of Look, 54 Hun, 635.

A valid execution'does not depend upon the correctness of the vision or the degree of the attention of the witness. Id.

No attestation clause is required. Id.

Where a clause, appointing the executors, follows the signatures of the decedent and attesting witness, the validity of the will depends upon whether such clause was written before or after the execution. Matter of Jacobson, 19 N. Y. St. Rep. 262.

The knowledge of the testator is implied from a holographic will. Matter of Stillman, 29 N. Y. St. Rep. 213.

So the knowledge of its contents is presumed from the signature and publication. Matter of Sheldon, 40 N. Y. St. Rep. 369.

As to when no presumption arises against the intelligent execution, see Mason v. Williams, 53 Hun, 398.

In the Matter of Smith, 60 Hun, 101, the circumstances were held to create a presumption that an illiterate testator knew the contents of his will.

Where the will was drawn at the testator’s house at his request by a lawyer who had been a county judge, and another lawyer conversant with testator’s affairs was a witness, and the attestation clause, but not the body of the will, was read aloud to the witnesses in the presence of the testator who could not read or write, it was held, in Matter of Smith, 61 Hun, 101, that it sufficiently appeared that the testator knew the contents of the will. See also Matter of Cottrell, 95 N. Y. 339; Rollwagen v. Rollwagen, 63 Id. 594.

Where the attestation clause is full and complete and the will is drawn and witnessed by one who is a lawyer and accustomed to the requirements of the execution of wills, his testimony that all the requirements were complied with is sufficient to show due execution, though the other witness, who was a law student and paid little attention to the matter, testifies to the contrary. Matter of Merriam, 62 Hun, 621.

The subscribing witnesses need not be present together when the acknowledgment is made, nor need they sign in the presence of each other. Matter of Potter, 33 N. Y. St. Rep. 936.

The publication of the will and request to witnesses may be made before the testator’s subscription. Matter of Williams, 40 N. Y. St. Rep. 356.

The genuineness of the signature to the will was held to he established upon the evidence in this case. Id.

A will cannot he probated in the absence of a subscription in the presence of, or an acknowledgment to, the attesting witnesses. Matter of Simons, 56 Hun, 642.

Mere non-recollection does not rebut the presumption of due publication arising from a proper attestation clause. Matter of Graham, 56 Hun, 640.

The name of one, written by the other witness, at his request, by reason of temporary physical disability, is a sufficient compliance with the statute. Matter of Strong, 39 N. Y. St. Rep. 852.

So, the requirements of the statute as to execution were held, in this case, to have been complied with by both witnesses. Matter of Voorhis, 54 Hun, 637.

Where the testator took from his writing desk an instrument which he handed, folded, to the subscribing witnesses, who had come to his house to attest his will, and which they signed at his request, upon his telling them that it was his will, but without their being shown or seeing the signature, it was held not to he a sufficient attestation of the will. Matter of Mackay, 110 N. Y. 611. The statute requires that, in order to prevent fraud and imposition, the witnesses to a will should either see the testator subscribe his name, or he should, with the signature visible to him and to them, acknowledge it to he his signature. Id.

The fact that the testator is a lawyer of great ability and of much experience in the matter of wills and familiar with all the requisite formalities for their valid execution, and the further fact that the subscribing witness, who in part superintended its execution, was also a person of like ability and experience, afford a strong presumption that all the acts necessary to make a valid will were performed. Matter of Nelson, 62 Hun, 619. Wills concededly made by persons in full possession of all their faculties, attested in due form, ought not to be set aside on the flimsy pretext that a witness, who has heard read the attestation clause, does not remember after many years whether a particular formality was complied with. Id.

In a state where the subscribing of the will is not necessary, the writing of the name of the decedent in the first line of the instrument is at most no more than an equivocal act. Matter of Booth, 53 Hun, 629. It may, or may not, be designed by the writer .as his signature to the instrument. Id. Ordinarily and commonly it would not be so regarded. The common understanding of signing an instrument is to place the signature at its end or termination. Id. In such case, some evidence must be furnished to maintain the instrument as a will, by proving the fact to be that writing the name in the body of the instrument was intended to be the signature of the party whose name was so written. Id.  