
    In the Matter of Proving the Last Will and Testament of Edwin B. Hunt, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888,)
    
    1. Will—Execution of—Substantial compliance with statutory form alities sufficient.
    A substantial compliance with the statute, which provides for certain formalities to be observed in the execution cf a will, in order to prevent imposition, undue influence and fraud, is always sufficient No particular form of words is required, or necessary to effect publication.
    3. Same—What a sufficient compliance as to publication
    It is a sufficient compliance with the statutory requirements if in some way or mode the testator indicates that the instrument, the witnesses are requested to subscribe as such, is intended and understood by him to be his executed will. In probate cases the courts must look to the substance of the transaction and see that there was no opportunity for imposition or fraud.
    3. Same—The facts in this case show a sufficient compliance with STATUTE.
    The instrument offered for probate as the will of the deceased, was wholly in his handwriting, as was also the attestation clause which was signed by the witness and the will was signed by the deceased. The attestation clause was as follows- “We, the undersigned witnesses, have signed the within in the presence of each other and of the testator, who acknowledged it to be his last will and testament.” The recollection of the two witnesses as to the transaction was imperfect; but each testified, however, in substance, that the circumstances must have been as stated in the attestation clause, or he would not have signed it. Held, that this will must have been presented to the witnesses by the testator, for them to sign, and such an act was equivalent to a communication by him, that he intended to give effect to the paper as his will.
    5. Same—Signing will in the presence of witnesses is a sufficient acknowledgment of subscription.
    If the paper was signed in the presence of the witnesses, that act was a sufficient compliance with the statute as to acknowledgment of the subscription.
    5. Same—Exhibition of signed paper with acknowledgment that it WAS HIS LAST WILL SUFFICIENT.
    If signed before being presented to them, the exhibition of the paper with his acknowledgment that it was his last will and testament, was a sufficient acknowledgment of the signature and publication of the will.
    
      1. New trial in probate case—Construction of Code Civ. Pro., § 3588.
    The provision of Code Civil Procedure, section 3588, must be reasonably construed, and a literal obedience is not to be given to its language where it would work an unreasonable if not absurd result. A new trial before a jury is not necessary on reversal where there is no conflict in the facts, and the matter in question is as to the conclusion to be drawn from the facts.
    8. Same—Statement in judgment of general term as to conflict on questions of fact not conclusive on court of appeals.
    The judgment in this case stated that the decree of the surrogate was reversed by the general term upon questions of fact. Held, not controlling upon the court of appeals, but may be regarded by them simply as the warrant, under Code Civil Procedure, section 1338, for said court’s examination of the facts of the case.
    Appeal from a judgment of the supreme court, general term of the second department, reversing the decree of the surrogate’s court of Rockland county, denying probate to a writing purporting to be the last will and testament of Edwin B. Hunt, deceased. The judgment of the supreme court stated that the reversal was upon questions of fact as well as questions of law. The facts are sufficiently stated in the opinion.
    
      James Armstrong, for app’lts; Walter Farrington, for resp’t.
    
      
       Affirming 6 N. Y. State Rep , 65.
    
   Gray, J.

The attestation clause was as follows: “We, the undersigned witnesses, have signed the within in the presence of each other and of the testator, who acknowledged it to be his last will and testament.” It is insisted that there is no proof that the subscription to the will by the testator was made in the presence of the witnesses, or that it was acknowledged by him to have been made, to each of the attesting witnesses.

The recollection of the two witnesses as to the transaction was imperfect; but each testified, however, in substance, that the circumstances must have been as stated in the attestation clauses, or he would not have signed it.

It is not pretended that there is any ground for rejecting the will, except that it was not executed in exact complianee with the statutory provisions referred to. The statute has surrounded the execution of wills with certain formalities, in order _ to prevent imposition, undue influence and fraud; but it is well settled by authority that a substantial compliance with the statute is always sufficient. No particular form of words is required, or necessary to effect publication. Lane v. Lane, 95 N. Y., 494. And recently in the Matter of Beckett (103 N. Y., 167; 2 N. Y. State Rep., 765), a case of a holograph will, so close and severe a criticism of the terms and manner of publication was considered needless. We have here a testamentary disposition of the estate, which the witnesses recognized to be in the handwriting of deceased, signed unquestionably by him; and an attestation clause, also in the handwriting of deceased, signed by them, which states it was signed by them in the presence of each other and of the testator and that the testator acknowledged the instrument to be his last will and testament.

The only supposed doubt as to the matter is cast by the inability of the witnesses to recollect precisely what took place, in detail. We think that it is a sufficient compliance with the statutory requirements, if, in some way or mode, the testator indicates that the instrument the witnesses are to subscribe as such, is intended and understood by him to be his executed will. In probate cases the courts should look to the substance of the transaction and see that there was no opportunity for imposition or fraud.

This will must have been presented to the witnesses by the testator for them to sign and such an act was equivalent to a communication by him that he intended to give effect to the paper as his will. If the paper was signed in the presence of the witnesses, that act was a sufficient compliance with the statute as to acknowledgment of the subscription. If signed before being presented to them, the exhibition of the paper with his acknowledgment that it was his last will and testament, was a sufficient acknowledgment of the signature and publication of the will within the rule laid down by this court in Matter of Phillips, (98 N. Y., 267).

In the case of Lewis v. Lewis (11 N. Y., 220), cited by the surrogate, it appeared affirmatively by the witnesses that the paper was so folded that they did not see any subscription, and that testator only said that “I declare the within to be my free will and deed.”

Such affirmative proof of what took place brought the case clearly within the operation of the statute and invalidated the execution. In that same case, however, Allen, J., said: “Mere want of recollection on the part of the witnesses will not invalidate the instrument, and in the cases cited by counsel, the courts establishing the. wills propounded have done so upon the ground that they were satisfied from the circumstances proved that the wills were duly executed, and that the witnesses had forgotten, thus relieving the parties interested against the infirmities of humanity and the uncertainty of human recollection.”

The attestation clause here is entirely consistent with the execution of the paper by testator in the presence of the witnesses, and nothing in the circumstances of this case pointing to any fraud or undue influence, and none being charged, we think the presumption should prevail that all formalities have been observed, and we, therefore, are disposed to, sustain rather than to reject this testament; for we feel satisfied that it was duly executed and published.

The appellant further insists that the general term upon reversing the decree of the surrogate should have ordered a jury trial of the material questions of fact, arising upon the issues, and cites section 2588 of the Code of Civil Procedure in support of his point. That section provides that £> where the reversal of a decree by the appellate court is founded upon a queston of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a, will, make an order directing the trial by a jury, of the material questions of fact arising upon the issues between the parties.”

We do not think this provision applies to this case, and it was proper for the supreme court to adjudge as it did. Although the judgment as amended stated that the decree of the surrogate was reversed by the general term upon questions of fact as well as questions of law, we cannot regard that as controlling on the point raised. We do not find that the reversal was dependent upon 'conflicting evidence. There was no conflict of facts at all. The only evidence was given by the two witnesses to the will. There was no difference between the surrogate and the general term of the supreme court as to any question of fact, and there could be no issue for a jury. The two courts only differed in the conclusion to be drawn from the facts, and that presents simply a question of law.

For equivalent reasons this court, in Matter of Will of Martin (98 N. Y., 193), a case probably overlooked by counsel, held that 1 the appeal to the supreme court was not governed by section 2588, or by Sutton v. Ray (72 N. Y., 482),” on which the appellant also relies in this case. It was there said that ££ they only applied when the reversal is founded upon a question of fact.” We think the statute should receive a reasonable construction and that literal obedience is not to be given to its language where it would work an unreasonable, if not absurd, result. The language in this section requires an order for a jury trial only where the reversal “is founded upon a question of fact,” and the legislature undoubtedly intended that only where such was actually the case and there was a real conflict of evidence, and the surrogate’s court' and the supreme court differed on the case, should the conflict be settled by a jury trial in the mode prescribed. But that a new trial before a jury should be deemed necessary,, where there is no conflict in the facts and the matter is one of the conclusion from the facts, is not a construction reconcilable with reason ; and we should refuse our sanction to such a construction. The insertion in the decree of the statement as to the grounds of the reversal, I think, we are not bound to take in the sense given to it by the appellant ; but should regard it simply as the warrant, under section 1338, for our examination of the facts of the case.

The judgment appealed from was proper, and should be affirmed, with costs.

All concur.  