
    Hiram Lockwood, App’lt, v. Mary Lockwood et al., Def’ts, John O. Baker, Purchaser, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Will—Execution of—Requirements.
    Where a will was admitted to prohate in South Carolina and but one witness appeared and was examined as to its execution, and there was no proof either as to the absence of the other witnesses or of their handwriting, or any secondary proof whatever in reference to said witnesses, nor did the attestation clause state that any witness signed at the request of the testator, Held, that the will was not executed or proven according to the laws of New York
    2. Same—Exemplified copy of—Laws 1872, chap. 680.
    The statute regulating the recording of foreign wills was not intended to give greater effect to an exemplified copy and the proofs than .would be given to the will itself; it was only intended that the exemplified copy should be, where the original could not be produced, as effectual as the production of such original, and it did not change the requirements of the laws of this state in regard to the descent of real estate.
    3. Same.
    An exemplified copy, where the original cannot be produced, is only presumptive evidence of the will and the due execution thereof.
    Appeal from order denying motion to require purchaser to complete purchase in a partition suit.
    
      Edw H. Rockwell, for app’lt; C. L. Wescott, for resp’t.
   Van Brunt, P. J.

The objections to the title in question are made because of defects in the execution and probate of the will of one John N. Williams, through whom the title was derived. John H. Williams died in South Carolina, where his will was made, executed and witnessed by three persons and admitted to probate in accordance with the laws of South Carolina, and an exemplified copy thereof was filed and recorded in the surrogate’s office in the county of New York, and certificates of the judge of the court of probate and various lawyers of South Carolina were attached and recorded with the will showing that it could not be removed from the records of that state, and hence could not be produced here.

Upon the admission of the will to probate in South Carolina, but one witness appeared, and was examined as to its execution, and there was no proof either as to the absence of the other witnesses or of their handwriting, or any secondary proof whatever, in reference to said witnesses. There was no proof, nor did the attestation clause state that any witness signed such will at the request of the testator. It is clear that under these circumstances the will was not executed or proven according to the laws of the state of New York.

But it is claimed that in view of the peculiar legislation authorizing the recording of wills admitted to probate in another state or territory, these objections cannot prevail.

The law of this state as it stood when the will was recorded (Laws of 1864, chapter 311, as amended by the Laws ■of 1872, chapter 680), provide that where any real estate situate in this state has been or shall hereafter be devised by any person residing out of this state and within any ■other state or territory of the United States, and the will of such person shall have been finally admitted to probate in such other state or territory, and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of such last will and testament, or of such record thereof and of the proofs, may be recorded in the office of the surrogate of any county in this state, where any real estate so devised is situated, which record in said surrogate’s office or an exemplified copy thereof, shall be in cases where the original cannot be produced, presumptive evidence of said will and of .the due execution thereof in all cases or proceedings relating to lands so devised.

The objection made by the plaintiff certainly has some support from the language of this provision; but in the construction of this portion of the law we must have regard to the intention of the legislature, and the objects sought to be attained. It is apparent what the intention of the legislature was; namely, to allow an exemplified copy of the will and the proofs which have been recorded in another state or territory where the original could not be produced, to have the same effect as though the original had been so produced.

It certainly was not the intention to give greater effect to the exemplified copy of a will and the proofs than would be given to the will itself. If such a construction is to be placed upon this section, then we would have this peculiar condition of circumstances that a will executed in South Carolina according to its laws, but not according to the laws of the state of New York, devising real estate in New York would be effectual because of the laws of South Carolina that a will which is probated must be filed and cannot be removed from the record for the purpose of production in New York, whereas a will made in North Carolina according to the laws of North Carolina, admitted to probate in North Carolina, but not executed according to the laws-of New York would not be effectual to pass the title to real estate in New York, because the laws of North Carolina authorize the taking of the will off the files for the purpose of probate elsewhere. Such a condition of affairs was never contemplated and all that was intended by the legislature was that the exemplified copy of the record should be as effectual as the production of the original in those cases where in consequence of the law of the residence of the testator the original could not be produced. It was never intended to change the requirements of the laws of this state in regard to the descent of real estate.

It is true that the language of the section is that the exemplified copy in cases where the original cannot be produced shall be presumptive evidence of the will and of the due execution thereof. But it is only presumptive evidence and where upon an examination of the record itself, it is apparent that the will has not been executed in such a manner as to comply with the laws of this state in reference to the transmission of real estate, the presumption is overcome and no longer exists.

The claim upon the part of the appellant that the record is of more value than the original shows the falsity of the position, and the construction of the section does not necessarily depend upon any such absurd rule.

We are of opinion, therefore, that the will not being executed in accordance with the laws of this state so as to pass real estate, no title to the devisee thereunder passed and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.  