
    Matter of Nevins’ Will.
    (Surrogate’s Court—Westchester County,
    June, 1893.)
    A last will and testament must be both subscribed and published by the testator, and an omission to do either is fatal to its validity.
    The subscription and publication of a will must be satisfactorily proved to have oeen made in the presence of two witnesses.
    One of the subscribing witnesses to an instrument purporting to be a last' will and testament, testified that he did not remember seeing the testatrix sign it or make her mark; another testified positively that he did not see her sign or- make her mark, but signed his name before he entered the room where the testatrix was; she said nothing to him and there was no publication made to him; that neither he nor the first witness saw the third witness sign his name. The attestation clause was not read to or by the first two witnesses, nor did they sign it in the presence of each other. The third witness, the lawyer who drew the will, testified that all the witnesses signed in the presence of the deceased and of each other, and that she declared it to be her last will and testament in the presence of the three witnesses, and requested them to sign. The will was dated August 9, 1891. The testatrix died August 4, 1891. Two subscribing witnesses testified that they signed the paper about a year before the death of testatrix. Held, that probate should be denied because the fact of subscription in the presence of two subscribing witnesses was not satisfactorily proved.
    
      Application for probate of a paper purporting to be a will.
    In preparing the alleged will the attorney used a large blank form, the commencement of which, with usual blank spaces, was printed; then follows the disposing part, consisting of about eight written lines, which did not reach to the middle of the page; the remainder of that page and the whole of the second page down to near the end remained entirely blank, except that at the foot of this second page was the printed word “ Witness,” opposite which were written “ Thomas ¡Neely ” and “ Patrick Clinch.” Then follows on the top of the third page (legal cap) a printed form for the appointment of the executors and the revocation of former wills, leaving a blank space for the name or names of the executor or executors to be written, and immediately beneath the attorney wrote the name “ Jane ¡Nevins her mark,” and the mark was made. A seal was placed after the name, and was taken off, and another seal was placed below it. About two or three inches below was printed the usual testatum clause, “ In witness whereof,” etc., with blank spaces for the day, month and year, which were filled in in writing “ ninth,” “ August,” “ninety-one.” Again the name of “ Jane ¡Nevins her mark ” was written, but no seal. Then follows a printed attestation clause with the usual blanks and the names of the same persons as witnesses, with the addition of the name of the attorney, and their residences. The petition for probate stated the death of decedent to have occurred on the 6th day of August, 1891, and then the “ 6th ” was altered to “ 9th.” .
    
      F. X. Donoghue, for Pintón Phelan, proponent.
    
      Arthur J. Durns, special guardian, for Anna Nevins, next of kin, contestant.
    
      James II. Moran, special guardian for Peter Nevins.
   Coffin, S.

This is a remarkable case in this respect, that the alleged will bears a date which was five days subsequent to the date of the death of the decedent. The proof that she died on the 4th day of August, 1891, is abundant and con-elusive, while the attorney who drew the will testifies that it was prepared and executed on the day of its date, hut the witnesses Keely and Clinch both swear that they signed the paper about a year before her death. The attorney is evidently mistaken in this. Ordinarily a mistake in the date is of little importance, but it may become so in comiection with other facts. The attorney was a witness in this proceeding, and testified that two different kinds of ink were used in the written parts of the blank, one a pale, and the other a darker ink. This is apparent from an inspection of the paper. In the blank formal part of the commencement of it there was printed “ I ” (blank) “ of ” (blank) “ county of ” (blank) “ and state of ” (blank) “ ag’ed ” (blank), and the blanks were filled with “ Jane Kevins,” “Yonkers,” “Westchester,” “ New York,” “ about fifty,” all with the pale ink except New York, which was with the darker. In the disposing part, after the printed words “ I give,” was written with the pale ink, “ and bequeath to Finton Phelan, all my property of every name and description in trust nevertheless to collect the rents and profits and pay over the same to my son Peter Kevins,” then immediately follows in the darker ink, “ until he shall attain the age of twenty-one years, at which time I hereby direct my said executor and trustee to convey to my said son Peter Kevins all my property of every nature and description.” Then follows a blank space of forty-two ruled lines to the foot of the third page, where the witnesses signed with the same pale ink. The same ink was used in filling in the name of the executor in the blank for it, the name of the deceased in two places, and the rest of the blanks to the end, including the blanks in the attestation clause and the signatures of the witnesses, except that in the blanks for the date. While the “ ninth ” “ August,” are in the same ink, the “ ninety-one ” is in the darker, and also the name of the attorney, subscribed as a witness. The attorney testified to the different inks as above stated, and attempts to account therefor by saying that he sometimes took ink with him, hut does not say that he did in this instance. The paper was prepared and completed, as he states, at the house of decedent, Avho was ill in bed, on the single occasion. It seems scarcely ■credible that he should have written at the same time “ Jane Kevins,” “ Yonkers,” “ Westchester,” in the pale ink, then “ UeAV York ” in the dark ink, and then immediately changed to the pale ink in writing “ about fifty,” and the same remark Avill apply to the dating of the will, 16 ninth ” and “ August ” being in the pale ink, and “ ninety-one ” innnediately changed to the dark. Both the other subscribing Avitnesses swear that they did not see the lawyer sign his name, Avhich was Avritten with the dark ink, as a "witness. How, this lawyer had no interest in the matter, so far as appears, other than professionally, and no motive can be readily assigned, prompting him to do anything unprofessional. He took this alleged Avill with him, and it remained in his hands more than two years — from the time of its alleged execution until about January, 1893. It was then called for by ex-Judge Thayer, but the lawyer refused to deliver it to him except upon the order of the executor or Peter Hevins, the alleged beneficiary. Subsequently Judge Thayer presented an order from the latter, and the paper was delivered to him. The evidence and circumstances seem to indicate that, in the interval, having examined the paper and discovered the blanks unfilled, now in the dark ink, the failure to make a final disposition of the estate in the disposing part of it, according to the preAdously■expressed Avish of decedent, he added what is there written, then supplied the year from a lapsed memory, and then subscribed his name as a witness, he having been present throughout. Other reputable lawyers have been known to slightly change or correct a mistake in an executed paper left in their possession, in order that it might conform to and express the true facts, however reprehensible the practice. He states that the dark ink was such as he used in his office. How, while a mere subsequent Avriting in of the date alone is of little importance (and a mistake in dating a year ahead has never been known to me, while giving the date of the past year frequently occurs), yet the fact of inserting the clause in the disposing part either renders the alleged xvill wholly void, or void pro tanto. I have frequently had occasion to animadvert upon the use of blank forms, and of leaving blank spaces, in wills, and especially where they are left in the custody of the draftsman. McCord v. Lounsbury, 5 Dem. 68, citing the case of Heady’s Will, 15 Abb. Pr. (N. S.) 211. The blanks-may be filled with dispositions of property not intended by the testator. For instance, in this instance there could readily have been added a provision to the effect that if Peter Bevins, should die before his arrival at the age of twenty-one years, the estate should be equally divided among the other children,, or any other provisions that might occur to the draftsman,, until the blank space was entirely filled. Whether the instrument was so tampered with as indicated, it is unnecessary to-determine, as it must be rejected as a will upon another ground.

The subscription and publication of a testamentary instrument are. independent facts, each of which is éssential to a-complete execution. The two prerequisites are distinct in their nature, as well as then* purpose, and an omission to comply with either is fatal to its validity. There must be satisfactory proof of the subscription and publication of the will in the presence of two witnesses. Baskin v. Baskin, 36 N. Y. 416. The case of Chaffee v. Baptist Missionary Society, 10 Paige, 85, where the testatrix, who had subscribed her will by making her mark, but not in the presence of the attesting-witnesses, and afterwards, and in their presence, placed her finger on her name and said, I acknowledge this to be my last will and testament,” and it was held that the will was not. duly executed, was approved in Lewis v. Lewis, 11 N. Y. 220. Bow, in this case, the witness Beely testifies that he does not remember seeing Mrs. Bevins sign the paper or make her mark, while Clinch swears positively that he did not. It does not appear that either of them was in the room when the mark was made, except that the attorney testifies that the whole business of the preparation, execution and witnessing of the paper was done at the same interview, including the-signing by the deceased and the three witnesses, but this evidently refers to the interview between him and the deceased. Clearly, the witnesses Neely and Clinch were not present when the paper was prepared, and that was done during the “interview.” Neither of them saw the paper in her hands, nor saw her make her mark or touch the paper, nor does it appear that the attestation clause was read to or by them. Hr. Clinch says Neely had signed his name before he entered the room, and he was there a half a minute, just long enough to sign his name; deceased said nothing to him; there was no publication made to him. He only supposed it was a will because the messenger sent to him told him what he was wanted for, but the attorney told him to sign; he did so and Went out immediately, and neither he nor Neely saw the attorney sign as a witness, and yet the latter testifies that they all signed in the presence of the deceased and of each other, and that she declared it to be her last will and testament in the presence of the three witnesses and requested them to sign. He seems to testify to what the law requires, rather than to the facts as they actually occurred. Under the circumstances, it seems that little reliance can be placed upon his memory of the transaction. He is contradicted on too many vital points by the other entirely-disinterested witnesses, and especially by Clinch, who is clear and positive in his statements. The proof is not satisfactory to my mind of the subscription by the deceased of the paper propounded in the presence of two witnesses, and, therefore, probate must be refused.

It is also very doubtful as to whether there was a proper publication, but it is unnecessary to consider that question here.

It may not be improper to remark that, in trying the case, the learned counsel directed their attention more particularly to the fact of the two different kinds of ink used in the body of the instrument, and to inferences to be drawn therefrom and the resulting effects, rather than to the question of a valid subscription and publication.

Decree accordingly.  