
    Charles F. Ludlow et al., appellants, v. James C. Ludlow et al., respondents.
    A decedent went into a store to execute his will. His brother James was there, and also Mr. Harrison and Mr. Miller. James said to Harrison, in the hearing of the decedent, “My brother has been making his will, and I would like to have you witness it,” to which Harrison replied, “All right.” The decedent, James and Harrison, then went into a small enclosure or desk, with glass around the top, so that persons inside of it were visible to others in the store. James said to Harrison, “This is my brother’s will, I would like to have you witness it,” whereupon decedent signed it, and Harrison, who saw him sign it, also signed as a witness. James then stepped out of the enclosure, and going to Miller, who was engaged at a counter about ten feet away, said, “Mr. Miller, Mr. Harrison has been kind enough to witness my brother’s will, now I want you to,” and then Miller went into the enclosure where decedent remained (Harrison having stepped out to make room for Miller), and signed his name to the will as a witness. Before James asked Miller to sign, the latter did not know that decedent was signing his will, although he surmised so because James had told him, a few weeks before, that his brother was coming there to execute his will, and that he (James) would like him (Miller) and Harrison to witness it. Miller testified that he thinks decedent heard James request him to witness the will. Miller did not see decedent sign nor hear him acknowledge his signature to the will.- — Held, that there was no publication of the will by decedent in Miller’s presence, and therefore that there was no execution of it, in compliance with the statute.
    Appeal from decree of Essex orphans court.
    
      Mr. J. W. Taylor, for appellants.
    
      Mr. T. N. McCarter, for respondents.
   The Ordinary.

This is an appeal from a decree of the orphans court of Essex county, admitting to probate a paper writing, purporting to be the last will and testament of William A. Ludlow, deceased. The controversy between the parties is as to the legality of the execution of the instrument. The will was signed on the 28th of October, 1879 (though it is dated November 28th), at a store in the city of Newark, to which the testator had come for the purpose. The witnesses whose names are signed to it, are James E. Harrison and Wesley C. Miller. The testator’s brother, James C. Ludlow, was in the store (which was Mr. Harrison’s) when the testator entered. When the testator came in, Mr. James C. Ludlow said to Mr. Harrison, My brother has been making his will, and I would like to have you witness it,” to which Mr. Harrison replied, All right; ” and they three then went into an enclosure — a desk — on one side of the store. This enclosure was not so high but . that persons outside of it in the store could see men standing within it. The upper part of it, above the desk, was of glass. After the three went inside, Mr. James C. Ludlow said, addressing Mr. Harrison, “ This is my brother’s will, I would like to have you witness it,” and thereupon the testator signed the paper, and Mr. Harrison, who saw him sign it, also signed it as a witness. Mr. James C. Ludlow then stepped out of the enclosure and went to Mr. Miller, who stood at a counter, at the distance of about ten feet from where the testator was standing. Mr. Miller says that at the time he was engaged in handling goods at the counter, or in some such business, Mr. James C. Ludlow, addressing him, said, “ Mr. ¡Miller, Mr. Harrison has been kind enough to witness my brother’s will, now I want you to,” and thereupon Mr. Miller went into the enclosure, where the testator was (Mr. Harrison had stepped out to make room for Mr. Miller), and signed his name to the will as a witness. Before he was asked to witness the will he did not know that the testator was'signing his will. He says he had an impression that that was what the parties were doing there, because some time — from two to four weeks— before that Mr. James C. Ludlow had told him that the testator was coming there to sign his will, and that he, Mr. James C. Ludlow, would like to have him and Mr. Harrison witness it. Mr. Miller did not see the testator sign the will, nor did the testator verbally acknowledge his signature in his hearing. Mr. Miller testifies as follows :

“ <J>. What were you doing when William A. Ludlow (the testator) came in that morning? A. I don’t know; handling some cloth or goods or something like that. Q. Attending to your business, whatever it was? A. Yes, sir. Q. But you did not know when Mr. Harrison was called away and went in that room (the enclosure), that they were executing a will, did you ? A. No, sir; I did not know it. Q. And will you please to state whether you were attending to your business, or whether you stopped and looked around and gazed at them, to see what they were doing ? A. I may have glanced there. Q. Did you look with any knowledge of what was going on ? A. I don’t know as I did, sir. Q. Did you know what was going on ? A. I did not know. Q. You did not see Mr. Harrison sign? A. No, sir. Q. You did not see the testator sign ? A. No, sir. Q. And he did not say anything to-you? A. No, sir. Q. He did not say it was his last will? A. No, sir. Q. He did not request you to sign it? A. No, sir. Q. Did anybody request you to sign it as a witness in his presence? A. Mr. James did. Q. Where was he when he requested you to sign it ? A. About five or six feet off. Q. He came to where you were ? A. Yes, sir. Q. And stayed where you were while you went in? A. I think Mr. James came along with me, or came near the door (of the enclosure). Q. Did he say anything when you got within hearing of Mr. William ? A. No, sir. Q. Did he say anything to you that was audible to Mr. William A. Ludlow? A. He did not say anything to me, only that which he said outside about the will.”

He also says that he should think that what Mr. James C. Ludlow said to him could have been heard by the testator, and that he thinks it was heard by him. He further says that the testator did not acknowledge the paper to be his will. Also, that -the witness heard nothing that was said while Mr. Harrison, was inside the enclosure, and did not see the latter sign, nor did he hear the testator say the paper was his will. Obviously, the testator no more signed the will in his presence than in the presence of any other person in the store, who may, at the time, have happened to be within the same distance from the testator, or even further off, and who was engaged in his own business and ^jvas not aware of the presence of the testator. The intention of the statute is that the testamentary act shall itself be witnessed. The signing may be acknowledged by the testator, but the signature must either be made or acknowledged by him in the presence of the witnesses; and his saying that the paper is his will is not an acknowledgment of his signature, within the meaning of the statute. The English statute (1 Vict c. 26 § 9) provides that the signature shall be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time, and that such witnesses shall attest and shall subscribe the will in the presence of the testator. In Ilott v. Genge, 3 Curt. 160, where probate of the paper propounded was denied, Sir H. J. Fust indeed said, in delivering judgment, that the construction he would be inclined to put on that clause of the statute was, that the production of the will with the signature to it, and requesting the witnesses to attest, and their attesting and subscribing the will, would be sufficient; but on the appeal to the privy council, the judicial committee, consisting of the Lord Chancellor, Lord Brougham, Lord Campbell, Vice-Chancellor Bruce and Sir S. Lushington, were unanimously of opinion that the mere circumstance of calling in witnesses to sign does not amount to an acknowledgment of the signature. Ilott v. Genge, 8 Jur. 323. And so, too, it has been held, notwithstanding the fact that the testator speaks of the instrument to the witnesses at the time as his will. Hudson v. Parker, 8 Jur. 786; Shaw v. Neville, 1 Jur. (N. S.) 408. Our statute provides that the will “ shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.” Rev. p. 1247. It will be seen that it not only requires that the signature be made or acknowledged in the presence of the witnesses, but that the testator declare the paper to be his last will in their presence. The English statute does not require the latter. In In re McElwaine, 3 C. E. Gr. 499, this court, speaking of the requirements of our statute, said : “ Four things are required, first, that the will shall be in writing; secondly, that it shall be signed by the testator; thirdly, that such signature shall be made by the testator, or the making thereof acknowledged by him in the presence of two witnesses; fourthly, that it shall be declared to be his last will and testament in the presence of those witnesses. Each and every one of these requisites must exist. They are not in the alternative. The third requisite contains an alternative, but one of those alternatives must exist. The second requisite — the signing by the testator— must exist. The second alternative of the third, to wit, that he acknowledge the making of the signature, will not supply the want of the second.”

In that case the testatrix did not, from feebleness, sign her name, but, at her request, another person signed it for her, and though the point of the case was that the signature was not made by her, the case is important as showing the care which has been taken in construing the statute not to depart from the plain requirements of its language. In the case in hand there was no declaration to Mr. Miller that the paper was the testator’s will,’ except the statement made to him by Mr. James C. Eudlow, •“ Mr. Miller, Mr. Harrison has been kind enough to witness my brother’s will, and now 1 want you to.” This may have been heard by the testator. Conceding that it was, and that it therefore may be regarded as having been said by him, it was only a declaration that the paper which Mr. Miller was about to witness (but which was not then before him, and was not pointed out or shown to him) was the testator’s last will. It cannot be construed to be an acknowledgment of the signature on the paper. Mr. Miller cannot, of his own knowledge, say who wrote that signature, except as he may know the writing of the testator, and so be able to speak on the subject. But the testator did not tell him, nor did any one else in the testator’s presence, that the signature to the will was written by the testator. Indeed he does not say that he saw the signature at all. He probably did so, however. He undoubtedly saw it when he signed his name. Had Mr. Miller been requested to be a witness before the signature was made, and had he stood by accordingly, where he could have seen if he had looked, it would have made no difference whether he in fact saw the signing or not. But when the will was signed he had not been asked to be a witness. It was only after the testator and Mr. Harrison had both signed that he was requested to be a witness. He was in fact called after the testator had signed in the presence of Mr. Harrison. Eeference was made on the hearing to the construction put upon a statute like ours by the courts of New York, who hold that where a testator produces a. paper to which he has personally affixed his signature, requests the witnesses to witness it, and declares it to be his last will and testament, that is all that the law requires, and is a substantial acknowledgment of his signature. Baskin v. Baskin, 36 N. Y. 416; Gilbert v. Knox, 52 N. Y. 125. It is enough to say at this time, in that connection, that while I heartily approve of the principle, which underlies and produced that construction— the principle of recognizing a substantial compliance with the statute as sufficient — there is no proof here of any acknowledgment whatever, either by word or in fact. The testator did not make the request, either to Mr. Miller or Mr. Harrison, but his brother did it. His brother, in making the request, in fact spoke in the first person. He said “I want you” &c. The testator does not appear to have uttered a single word in the whole matter, either to Harrison or Miller, except as he said “ Good morning ” in return to the salutation of the former. Ho assistance is to be had in this case from the attestation clause. It is merely “ in the presence of.” And obviously the affidavit made by Mr. Harrison before the surrogate to the effect that Mr. Miller was present when the testator signed the will, is of no importance. I have no doubt that the testator signed the will in the presence of Mr. Harrison, and that the paper was intended by him for his will, and I am loth to defeat his intention, but the construction I deem it my duty to put upon the statute constrains me to refuse to admit the paper to probate. The decree of the orphans court, and the proceedings of the surrogate, so far as the admitting the will to probate is concerned, will be reversed, but as to the payment of costs and counsel fees, the decree appealed from will be affirmed. The costs of the appeal, with a counsel fee of $100 to each side, will be paid out of the estate  