
    In the Matter of Proving the Last Will and Testament of Emma Marcy Raymond, Deceased, as a Will of Real and Personal Property. May McClellan Desprez and Others, Appellants; Charles H. Patten and Others, Respondents.
    
      Will — execution—evidence.
    
    Appeal from a decree of the Surrogate’s Court of the county of New York, entered on the 16th day of July, 1914, refusing to admit to probate an instrument propounded as a last will and testament.
   Per Curiam:

Emma M. Raymond died on the 7th of November, 1913, leaving what purported to be her last will and testament, bearing date the 8th of January, 1912. At the time of her death she was about eighty years of age and the will was drawn by herself. The attesting witnesses were Gertrude Green and James Gumming. The will was offered for probate, which was ref used on the ground, as appears from the opinion of the surrogate, that “there was no publication, no legal request made to the subscribing witnesses to act as such, and no acknowledgment to the witness Gumming, who was not present when the testatrix signed and who did not see her signature.” (86 Misc. Rep. 359.) The proponents and two legatees separately appeal: After a careful consideration of all the evidence bearing upon the execution and publication, and the cbeumstances in connection therewith, we are not satisfied with the conclusion reached by the surrogate. When the deceased wrote her will she either knew what formalities were required in its proper execution, or else was apprised of that fact in copying it from a form. It is evident she took much care in preparing the will and it is inconceivable, under such circumstances, that she would have requested the witnesses to come to her apartment for the purpose of signing as such, and when they signed, not have said a single word to them about it, or for what they were there. Taking into consideration the surrounding circumstances, the contradictions of the subscribing witnesses and the witness Searing, we think the proper disposition to make of the appeal is to direct a trial of the issues involved before a jury. The decree appealed from, therefore, is reversed and the issues raised as to whether the instrument was duly executed as a last will and testament directed to be tried in the Supreme Court before a jury, with costs payable out of the estate to the appellants. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ. Decree reversed and issues ordered tobe tried in the Supreme Court before a jury, with costs to appellants payable out of the estate. Order to be settled on notice.  