
    Matter of the Probate of the Last Will and Testament of Jeremiah Palmer, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      January, 1904.)
    Holographic Will—Execution.
    A holographic will, lacking an attestation clause, was admitted to probate on proof that the testator stated to the first witness that he had written out a paper so that his matters could be attended to in case of any thing happening to him, that he had written the entire paper, and that he requested the witness to sign the same as a witness—and further—that he declared to the other witness, not present with the first witness, that he had made a will, that he had writt'en out the same and he requested this witness to sign as a subscribing witness.
    See note on Holographic Wills, Yol. I, p. 138.
    Proceeding upon the probate of a will.
    Hylan & Underhill, for proponent; Marsh & Bennett (Ellen J. Bennett, of counsel), for Hattie Clapsaddle and others.
   Church, S.

The paper propounded here as the last will and testament of the deceased was entirely in the handwriting of the deceased. It was not drawn in the ordinary form of a will; there was no attestation clause to the same, and it is apparent that the deceased did not formally attempt to comply with' the provisions of the statute. The question is, therefore, whether there has been a substantial compliance with the provisions of the statute so a® to authorize this paper being admitted to probate as the last will of the deceased. The fact, of course, that it would be regarded as a holographic will, and, therefore, unquestionably represents the intention of the testator, is entitled to considerable weight in the consideration of the matter, 'but, even if it represents the intention of the deceased, the deceased cannot be superior and above the provisions of the statute. Matter of Turell, 166 N. Y. 330.

It seems to me, however, that there are facts in this case, which do not exist in the Turell case, which justify the admission of this paper to probate, as the last will and testament of deceased.

In substance, we have the deceased stating to the first witness that he had written out a paper so that his matters could be attended to in case of anything happening to him; this was, in effect, a declaration that this was his will. Next we have the deceased declaring that he had written the entire paper; this was, in effect, a declaration that the signature to the paper was his sigsature; and next we have a request to this witness to sign same as a witness.

The other witness was not present at this time, but we have a declaration to this other witness that he had made a will; that he had written out the same, and further, a request to the other witness to sign it as a subscribing witness. This is, therefore, a substantial compliance with the provisions of the statute.

Let decree be entered, therefore, admitting such paper to probate.

Probate decreed.  