
    In the Matter of the Application for Probate of a Paper Propounded as the Last Will and Testament of Kate L. Laudy, Deceased. Louis H. Laudy and Others, Respondents; Kate P. Elliott, Appellant.
    
      New trials where .probate issues are tried in the Supreme Court — appeal — a signature to a will must be seen by a witness to whom it. is acknowledged. ■
    Where, in a proceeding for the probate of a will, issues of fact relative to the execution thereof have been tried ■ in the Supreme Court before a jury, the practice relative to the granting of a new trial is the same as that which obtains where issues of fact have been submitted to a jury, pursuant to an order made in an action.
    
    The granting of new trials in the latter case being governed by sections 999 and 1003 of the Code of Civil Procedure, it is not necessary that a motion for a new-trial in the former case should be made at the Special Term where the motion for final judgment is made, but such motion may be made at the time the verdict was rendered, upon the grounds specified in section 999 of the Code of Civil Procedure.
    An order denying such a motion for-a new trial is appealable under subdivision 2 of section 1347 of the Code of Civil Procedure. \
    Upon the trial of issues submitted to a jury relative to the subscription of- the testatrix’s name to a will, the only evidence as to. whether - there had been a proper acknowledgment of the testatrix’s signature was given by one of the subscribing witnesses, who testified that although the testatrix had studiously and persistently sought to prevent the witnesses from seeing what was written, by so folding the will that neither the writing nor the subscription was. visible, he had, by reason of the accidental raising of the edge pf the fold,observed some writing, which he could not read, where the testatrix’s signature appeared to have been written.
    
      J&eld, that the evidence was insufficient to sustain a finding that there had been a proper acknowledgment within the statute.
    The acknowledgment by a testator of his subscription to his will is not sufficient within the statute (2 B. S. 68, § 40), unless the signature is so far visible to the witnesses that they can see and know that the name purporting to be subscribed is the name of the testator. It is not sufficient that the witnesses see that there is some writing, which they are unable to read, where the signature is claimed to have been.
    The fact that subscribing witnesses to a will signed the attestation clause is not a circumstance tending to show a proper execution of the will where it appears that they were not permitted to read or even to see such clause.
    Appeal by the contestant, Kate P. Elliott, from, an order of the Supreme Court, made at a Trial Term thereof, and entered in the-office of the clerk of the county of New York on the 3d day of' June, 1896, denying her motion for a new .trial upon the minutes,, after a trial by a jury upon questions of fact as to the execution of' the last will and testament of Kate L. Laudy, deceased, such trial by jury having been ordered by the Court of Appeals.
    
      Daniel Q, Rollins, for the appellant:
    
      H B. Olossen and P. Harwood Vernon, for the respondents.
   Williams, J.:

The will was presented for probate to the surrogate of the county of New York. The surrogate made a decree denying probate of . the will. On appeal, the General Term of the Supreme Court, reversed the surrogate’s decree and made a decree admitting the will to probate. On appeal, the Court of Appeals modified the decree-made by the General Term of the Supreme Court so as to direct atrial by a jury, at a Trial Term of the Supreme Court, of certain questions of fact arising upon the issues between the parties. The trial of these questions of fact was had in May, 1896, and the jury found that the instrument presented for probate was not subscribed by the testatrix in the presence of the witnesses, but that she did' acknowledge her subscription to each of the witnesses. At the time the verdict was rendered, the appellant moved to set aside the verdiet and for a new trial as to the second question of fact, on the ground that the verdict was against the evidence and against the law, and upon each and every ground specified in section 999 of the Code of Civil Procedure. This motion was denied, and from the order denying the motion this appeal is taken. It is first contended by the respondents that the court had no power to entertain the motion, and, as a consequence, that the order denying it was not erroneous and should be affirmed. The claim is that a motion for a new trial in such a case could only be made or entertained or granted by the court at a Special Term where the motion for final judgment was made. We do not regard this claim and contention as well founded. It seems to us the practice in this class of cases is very clearly prescribed by the various provisions of the Oode of Civil Procedure. Section 2588 provides that, after the trial, a new trial may be granted, as prescribed in section 2548 of the act. Section 2548 provides that a new trial may be granted, if it (the trial) took place at a Trial Term of the Supreme Court, ly the Supreme Court, in a case where a new trial of specific questions of fact tried by a jury pursuant to-an order for such trial made in an action would be granted. This section very clearly means that the new trial in this special proceeding may be granted by the same branch of the Supreme Court, at the same time and upon the same grounds that it would be granted in a case where questions of fact were ordered to be tried before a jury in an action. Any other construction would be forced and unusual. The provisions as to new trials in such cases in an action are found in section 1003 and incidentally in section 999s. The latter section provides, generally, for a motion for a new trial in case of a trial before a jury, upon the minutes of the court, at the same time at which the verdict is rendered; and then section 1003 makes these provisions applicable to causes w'here questions of fact are ordered to be tried before a jury, but provides, specially, that such new trial may be granted as to some of the questions tried, and denied as to other questions tried at the same time, and that errors committed during the trial may be disregarded when substantial justice does not require a new trial to be granted, and closes with the provision that “ where the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions taken at the trial to be heard at a term of the Appellate Division of the Supreme Court, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires.” These provisions seem to us to be clear and unmistakable and to provide for the practice that was adopted in this case. The order denying the motion for a new trial was appealable under subdivision 2, section 1347 of the Code of Civil Procedure.

We are called upon, therefore, to examine the appeal upon its merits and to determine whether the order denying the motion for a new trial was properly made. The principal contention by the appellant is, that the evidence was insufficient to sustain the finding of the jury that the testatrix acknowledged her subscription to the will to each of the witnesses. The questions to which these answers were made were in the precise language of the statute prescribing the requirements necessary for the proper execution of a will. These provisions are, that such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.” (2 R. S. 63, § 40.) The jury found, and the fact was not controverted, that the subscription of the testatrix was not made in the presence of the witnesses. The paper had been subscribed before the witnesses appeared. The question is whether the subscription by the testatrix was acknowledged by her, to have been made, to each' of the witnesses. The jury answered “ yes,” and the appellant claims there was no evidence to support that answer and finding. There was evidence to show that the will, when presented to the witnesses, had already been subscribed by the testatrix, and that she said, in the presence of both witnesses, that the instrument was her will. There was evidence from which it might be inferred that she told them she had subscribed the will. The real controversy was over the question as to whether she exhibited the signature to both of the witnesses and whether it was visible to them. R is well settled that the acknowledgment of the subscription is not sufficient within the statute unless the signature is visible to the witnesses. (Matter of Laudy [this same case], 148 N. Y. 407, and cases therein cited.) The courts say that the subscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator, and for this purpose it is essential either that the witnesses shall see the testator subscribe his name, or that with the signature visible to him and to them, he shall acknowledge it to be his. (Lewis v. Lewis, 11 N. Y. 220; Matter of Mackay, 110 id. 611; Matter of Laudy, supra)

In Lewis v. Lewis (supra) 4t appeared that the paper -was so folded that they did not see any subscription. The court held the will not properly executed, and said: “ If the party does not subscribe in their (the witnesses’) presence, then the signature must be shown to them, and identified, and recognized hy the party, and in some apt and proper manner by him as his signature. The statute is explicit and will not be satisfied with anything short of a substantial compliance with its terms.”

In Matter of Mackay (supra) it appeared that the paper was so folded that the witnesses could see no part of the writing except the attestation clause, and they did not see either his signature or his seal. For this reason the will was held not to have been properly executed. The court used the language first quoted by us above Subscribing' witnesses to a will are required by law,” etc.,, and these cases are cited and approved in Matter of Laudy (supra).

If this language of the courts is to have its fair and reasonable construction, the signature must be so far visible to the witnesses as that they can see and know that the name purporting to be subscribed is the na/m,e of the testator. Otherwise, they cannot identify it as that of the testator, and where the signature is so far intentionally concealed and covered up by the testator, that the witnesses can merely see that there is some writing where the signature is claimed to have been, but cannot read the writing, we fail to see how it can be fairly said that the signature is visible to the witnesses in such a sense as to constitute a compliance with the statute and the construction given ■ to: its language by the courts. In this case it appears that the testatrix held the will do\yn upon the table with both hands, and so folded as that neither the writing nor the signature were visible except as the edge of the fold was accidentally raised so that Dr. Porter, one of the witnesses, observed that there was. some writing where it now. appears that the signature of the testatrix was written. To quote from the doctor’s evidence, 111 don’t know just exactly how it (the. paper) was held, but it was held in such a way that all the writing was covered nip practically except that I could just discover that there had been writing above where I signed. There was writing above yffiere I signed, but it was covered up so I could not tell what it was; whether the writing was on the upper sheet folded down, or under it on the other sheet, I cannot swear. She held the paper "folded with the intention, very distinctly, I think, of concealing everything that was written above where I signed, putting both hands upon it, but as I stood up to sign it I saw there was writing above where I signed. I think, probably, that it was by the springing up of the paper that I was able to see it. It was so folded as to conceal all the writing, except what now seems to be the lower part of the y in her last name, Tandy. I do not think that I could now swear that I saw even this part of the y when I signed as a witness. I saw that she was anxious that I should not see what the writing was, and I did not take any pains to see it. It was in her attempt to fix the paper, holding it down, that I, saw there was writing there; that there was a written document of some kind. There was writing above where I signed that she was evidently trying to cover up.” It will be remembered that the subscription to the instrument was not made where it should have been at the end of the will, opposite the seal placed there, and before the attestation clause, but at the bottom of the attestation clause, so that this witness could hardly have supposed, at the time he signed, that the writing he did see was the signature of the testatrix. This is all the evidence of this witness upon which the finding of the jury in question can rest. The evidence of the other witness was clearly insufficient to support any such finding as the jury made, and need not be referred to in detail. The case was sent by the Court of Appeals to a jury for trial, not upon any idea that the other'witness testified to a proper execution of the will, for she distinctly testified it was not so executed, but upon the theory that the doctor’s evidence may have been sufficient to establish a proper execution of the will, and that the credibility of the two witnesses was a question which should be determined by the jury. The record which was before the Court of Appeals is not before us now, and we do not know that the evidence of .the doctor, there, was the same that it appears, in the record, to have been on the trial before the jury. We assume it must have been different, because, upon the evidence as it now stands, it does not seem to us that the Court of Appeals could have believed there was any question for the jury, even upon the evidence of the doctor.

It is true that in some cases, in view of the circumstances and the inferences to be-drawn from the evidence, a will may be found to have been properly executed even though both witnesses fail to testify to a proper execution of the will. Failure of the memory of the witnesses may be disregarded and the facts found from other evidence in the' case, and the inferences to be drawn therefrom. In this case, however, there is an utter absence of any facts or circumstances from which an inference can be drawn that the signature of the testatrix was visible to the witnesses or either of them. On the contrary, the evidence affirmatively shows that the testatrix studiously and persistently prevented the witnesses from seeing what was written, and the conclusion is irresistible that neither witness did see the signature, so as to read it or be able to identify it, or to say that it was or purported to be a signature at all. ■

It cannot be said that the fact that the witnesses signed the attestation clause was a circumstance tending to show a proper execution of the will, because it appears without contradiction that the witnesses were not permitted to read or -even see the contents of that clause.

We are unable to perceive how, under the evidence in this case, the jury were justified in making the answer and finding complained of. It is unnecessary to consider the alleged error in the charge in view of the conclusion at which we have- arrived upon the main question in the case. -

Our conclusion, therefore, is that the order denying the motion for a new trial was improperly made and should be reversed and a new trial granted as to the second question of fact, with costs to abide the event.

Van Bbunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order reversed and new trial granted as to the second question of fact, with costs to appellant to abide event.  