
    Matter of Proving the Will of Harriet L. Losee, Deceased.
    (Surrogate’s Court—Westchester County,
    June, 1895.)
    One who is unable to see the testator’s signature at the time of the execution of the will is incompetent to be an attesting witness.
    The will in question was signed by the testatrix in the presence of two-witnesses, one of whom was unable to see to write, and at her request the other witness signed the names of both. It appeared that the first-named witness was unable to see testatrix’ signature or to distinguish whether there was ink on the pen with which she wrote, and on the hearing could not distinguish the writing on the paper produced or identify it. Held, that there was no valid execution of the instrument,, as there was but- one attesting witness.
    Probate of .will.
    
      William, A. Jayeox, for petitioner.
    
      George G. Andrews, special guardian, contestant.
   Silkman, S.

The objections of the special guardian rai^ethe question whether the paper propounded as the last will and testament of Harriet L. Losee was signed by two attesting witnesses.

The paper bears date the sixth day of December and purports to be signed by the decedent and attested by Eliza Brown and Elizabeth T. Lefurgy as witnesses. There is no-attestation clause. .

The testimony of the witness Lefurgy is to the effect that,, at or about the date of the paper, it was signed by the decedent in the presence of Mrs. Brown and witness, and declared by the decedent to be her last will, and that thereupon decedent requested Mrs. Brown and witness to sign as witnesses; Mrs. Brown’s eyesight being such that she could not see to-' write, witness signed Mrs. Brown’s name as well as her own, signing Mrs. Brown’s name at her request. Ho one else was-in the room at the time; decedent was in bed, and Mrs. Brown and witness stood by the bedside while the paper was signed upon a book, Mrs. Brown supporting decedent while she wrote. Mrs. Brown gives similar testimony, except-that she test-ifies that her eyesight was so poor that she could not see whether there was ink on the pen with which decedent wrote, and that her eyesight has heen about the same for fifteen years. Upon the witness stand she was unable to distinguish the writing upon the paper propounded, and, in endeavoring to point out the signature, held the paper upside down without being aware of it, and actually pointed to the body of the instrument as the place where the names of the decedent and alleged witnesses were. Her efforts were such as to make it clear that she could only discern that the paper in her hand was not merely a piece of blank paper. She wholly failed to identify it as the one upon which she requested Mrs. Fefurgy to write her name.

The Revised Statutes, among other requisites for the proper execution of a will, provide: “There shall be at least two attesting witnesses, each of whom shall sign his name at the end of the will at the request of the testator.”

One of the main objects of the statute is for the purpose of having the paper intended to be the last mil and testament signed by two persons as witnesses who can subsequently identify it as the one which they saw the testator sign, or upon which they saw testator’s signature. A witness is one who has knowledge of a fact or occurrence sufficient to testify in respect to it. In the case of a will a witness must have knowledge that the paper is a will by the declaration of the testator that it has been signed, by either seeing the signature written or by seeing the signature with an accompanying acknowledgment by the testator that it is his or her signature. Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; In re Mackay, 110 N. Y. 611; Sisters of Charity v. Kelly, 67 id. 409; Willis v. Mott, 36 id. 486; Matter of Van Geison, 47 Hun, 8; Matter of Bernsee, 141 N. Y. 389.

In the Mackay case Earl, J., in writing the opinion, says: “ Subscribing witnesses to a will are required by law for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it.”

And in the case of Bernsee, Andbbws; Ch. J., cites the Maokay case, and says: It is essential to the due publication of a will either that the witnesses should see the testator sign the will or that such signature should have been affixed at' sonie prior time and be open to their inspection.” ■ .

The loss of the sense of sight does not disqualify a person as a witness in many transactions where they obtain knowledge of the transaction through the other senses than that of sight. By'the sense of hearing a witness can testify to the sound of the voice; by the sense of feeling to the question of shape; through the sense of smell to the matter of odors; but without the sense of sight a person is incompetent and cannot be an attesting witness to a will. There must be an identification of the instrument by one who has seen the signature written or has seen the signature «which has been acknowledged by the testator as his or hers.

The paper propounded is identified only by the .witness Lefurgy; she is the only one who saw the signature of the decedent at the time of the execution and can swear that it is , the paper which the decedent signed and which she signed as a witness. It is true that the statute permits the proof of the handwriting of the decedent and of the subscribing witness or witnesses where the subscribing witness or witnesses are dead or absent from the state and their testimony cannot be obtained ; but the statute applies only where there have been two attesting witnesses who have signed their names as such. The statute was passed to allow the probate of wills that had been executed with all the formalities required by law. The difficulty in this case is that there was but one witness and the formalities prescribed by the statute were not fulfilled. Mrs. Brown was not a witness because she could not see at the time of the alleged execution; if she had been able to see then, and subsequently lost her sight, the case might be different. Such was the case of Cheeney v. Arnold, 18 Barb. 434, relied upon by the proponent. In that case a subscribing witness who had signed the will had become blind by reason of great age; the case was decided upon the well-established legal principle that where the witnesses are dead or by lapse of time do not remember the circumstances attending the execution, the law, after diligent production of all the evidence existing, if there are no circumstances of suspicion, will presume a proper execution of the will, particularly when the attestation clause is full.

The statute prescribing the necessary formalities for the due execution of a will was passed to provide against fraud and imposition, and the protection given by it cannot be repealed by the court. Its wisdom needs no argument to sustain it, even though in isolated cases injustice is done and the wishes of the dead are thwarted.

A decree will be entered denying probate.

Decreed accordingly.  