
    Mary A. Meiggs, Respondent, v. Raymond Hoagland, Appellant.
    
      Will of a non-resident, admitted to probate in the State of his residence —pi’oofs ..showing that the-witnesses did not state on the probate that they signed at the.tesia■tor’s request and that thereaftei• they so testified—real estate in New York will not pass under it — adverse possession.
    
    The will-of a testator, who died seized of a burial plot situated in the State of New York, was executed,in Philadelphia, Penn., and was admitted to probate in that city by a deputy register of wills. The witnesses did not testify that they had become such"at the request of the testator, but they subsequently appeared before another deputy register of wills in Philadelphia and so testified.
    An exemplified copy of the probate proceedings, including those had before the second deputy register, was filed in the office of the surrogate of Bangs county in November, 1872. Chapter 680 of the Laws of 1872, which was then in force, provided that where any real estate located in the State of New York should be thereafter devised by any person residing out of the State of New York and the will had been admitted to probate in such other State, an exemplified copy of such will and of the proofs might be recorded in the office of the surrogate of the county where the real estate was situated and should be presumptive evidence of the will and its due execution.
    
      Held, that assuming that all the proceedings in the register’s court of Philadelphia, including the second deposition made by the subscribing witnesses, were properly incorporated in the exemplified record, such record was only presumptive evidence of the will and its due execution and that this presumption was overcome by the fact that at the time the will was admitted to probate it had not been shown that the subscribing witnesses became such at the request of the testator.
    Evidence simply that the widow of the testator, to whom the plot had been devised by the will, took possession of the same in 1866 by interring the body of her husband therein, and that in 1872 she removed his body from the plot and conveyed the premises, does not establish a valid title to the plot by adverse possession in her grantee on May 17, 1900.
    Appeal by the defendant, Raymond Hoagland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of June, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      James G. Bergen, for the appellant.
    
      Henry L. Bogert and Henry A. Bogert, for the respondent.
   Goodrich, P. J.:

The plaintiff, claiming that she had good title to eight lots constituting a plot in Greenwood Cemetery, Brooklyn, entered into a written contract to convey the same to the defendant, and at the tjme and place appointed in the contract tendered a deed thereof to the defendant, who refused to accept the same or to carry out the contract, on the ground that the plaintiff’s title was defective. This action is brought to compel the defendant to accept the deed as tendered and carry out his contract.

The original title to these lots was in the Greenwood Cemetery Association. ' There appears upon the hooks of the association a statement that the lots were sold by if to one John F. Cleu on April 11, 1853.. The deed is not recorded in the office of the register of the connty of Kings and was not produced upon the trial, its loss being proved, but the defendant concedes that the deed was made and delivered and the property paid for by Cleu. Cleu died August 6, 1866, and his remains were interred in one of the lots in question on August 9, 1866. They were disinterred on December 6,. 1872, at. the request Of his widow and buried in another lot in the same cemetery.

By his last will and testament Cleu had bequeathed to his- widow, Philomena, all his “real estate, personal and mixed.” This will, which was executed in Philadelphia, Penn., was admitted to probate in that city by a deputy register of wills on August 27, 1866. The attestation clause reads: “ Signed, sealed, published and declared ■ by the said J. F. Cleu as his last will and testament in our presence.” There were three subscribing witnesses. Two of them testified “ that they were present and did see and hear John F. Cleu, deceased, the testator therein named, sign, seal, publish and declare the same as and for his last will and testament, and that at the doing thereof he was of sound disposing mind, memory and undérstanding, to the best of their knowledge and belief.” It did not contain a statement - that the witnesses had become such at the request of the testator, or that they had signed as witnesses in his presence.

Six years later, on November 27, 1872, the same witnesses appeared before another deputy register of wills in Philadelphia and testified, that they had been requested by the testator to act as witnesses and had subscribed their names as attesting witnesses. The record of tlie will and proceedings at the time of the first probate, and also the subsequent testimony of the two witnesses, were filed in the office of the surrogate of the county of Kings previously to November 27, 1872, and on November 28, 1872, the widow, then Philomena M. Smith, with lier husband, Isaac M. Smith, executed a' deed- of the premises to the defendant, the deed being recorded December 6, 1872.

■When the exemplified' copy of the probate proceedings in Philadelphia was filed in the surrogate’s office of Kings county in Novemher, 1872, .chapter 680 of the Laws of 1872 was in force. That chapter provided that where any real estate situate in this State should be thereafter devised by will by any person residing out of this State and such will had been duly admitted to probate in such other State and filed or recorded in the probate office, an exemplified copy of such will and of the proofs might be recorded in the office of the surrogate of any county in this State, where the real estate was situated, and should be presumptive evidence of said will and its due execution.

The plaintiff offered in evidence a copy of the papers thus filed in the office of the surrogate of Kings county, exemplified by the clerk of the Surrogate’s Court in accordance with section 2703 of the Code of Civil Procedure.

There was no exemplification of the record of the will before the Probate Court of Philadelphia as might have been offered in evidence under section 2632 of the Code of Civil Procedure, which has since been amended by chapter 540 of the Laws of 1901, which was to take effect in September, 1901. Consequently this amendment did not affect the proceedings in the trial now under consideration, and we need not consider it.

The defendant refused to accept the title on the ground that by the law of this State a will valid to pass title to real property situated in this State must be executed according to the laws of this State, that the record shows that at the original probate in Philar delphia in 1866, the witnesses did not testify that they acted at the request of the testator, and consequently that as to his real property in this State Cien died intestate; that the subsequent proceedings in 1872, which occurred before a different deputy register, were a nullity, they being no part of the probate proceedings and not taken in any action to establish the will; that no notice was given to the heirs or other persons; that there was no judicial act or adjudication based upon it, and that it constituted no part of the record of probate which, by chapter 680 of the Laws of 1872, embodied by chapter Í78 of the Laws of 1880, in section 2703 of the Code of Civil Procedure, is made presumptive .evidence of the will and of the due execution thereof.

Matter of Langbein (1 Dem. 448) is singularly similar to the . case at bar. In that case witnesses on the probate of a will of real estate appeared before the register in Philadelphia, where the will was proved, and were described in the will as subscribing witnesses, but it did not appear that they signed the attestation clause as such at the request of the testator. The will was admitted to probate in Philadelphia, and several months later the witnesses appeared before the register and testified, among other things, that they signed their names as witnesses to the will at the request of the testator. An exemplified copy of the entire record, including the' second deposition of the witnesses, was annexed to the petition before the surrogate asking to have the will recorded as a will of foreign real estate. Surrogate Livingston held that the later testimony of the witnesses formed no part of the proof on which the will was admitted to probate, and so was not entitled to be recorded under section 2703 of the Code of Civil Procedure as presumptive evidence on the subject of the execution of the will. -’This section is a substantial re-enactment, of. the statute of 1872, above referred to.

In Estate of Shearer (1 Civ. Proc. Rep. 455) the same surrogate denied an application to admit to record a will which had been admitted to probate by the register, of wills of Tioga county, Penn., on the ground that the witnesses did not testify that they had signed as subscribing witnesses at the request of the testator or that they signed the same as witnesses.

It follows that, although the will was admitted to probate in Pennsylvania, it was admitted according to the laws of that Commonwealth, which apparently do not require proof that the subscribing witnesses became such at the request of the testator. The statute .of Pennsylvania (1833, P. L., 249, § 6) does not require that the subscribing witnesses to a will must have become such at the request of the testator. Indeed, the witnesses need not have subscribed at all. (Hight v. Wilson, 1 Dall. [Penn.] 94; Carson’s Appeal, 59 Penn. St. 493.)

Assuming, however, for the purposes of argument that all of the proceedings in the register’s court of Philadelphia connected with the will of Mr. Cleu were legally recorded in the surrogate’s office of the county of Kings in 1872, they are only made presumptive evidence of the will and its due execution, and this presumption will be overcome where it appears thereby that the will was not admitted to probate upon evidence existing at the time of the probate that the subscribing witnesses became such at the request of the testator. To hold otherwise would be to give greater effect to the exemplified copy of the will and proof than would be given to the will itself. Such was the decision in Lockwood v. Lockwood (51 Hun, 337), a decision made in the former General Term of the first department.

The plaintiff also contends that title has been acquired by adverse possession. Section 370 of the Code of Civil Procedure reads as follows:

“For the purpose of constituting an adverse possession, by a peraon claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases :
“ 1. Where it has been usually cultivated or improved.
“ 2. Where it has been protected by a substantial inclosure.
“ 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.
“ Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared, or not inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length. of time as the part improved and cultivated.”

There is no evidence that the lots were ever “ protected by a substantial inclosure,” or were “ usually cultivated.”

The decision of the court below holds the plaintiff’s title good by “adverse possession, the widow of John F. Cleu having taken possession of the said eight lots by interring therein the body of her husband in 1866, and having delivered the possession to the plaintiff in 1872 by disinterring said remains and leaving the plot in the possession of the plaintiff unincumbered.”

Even if it were true that the body of Cleu was buried in one of the lots and remained there thereafter for more than twenty years, and that adverse possession of that lot, or even of the whole plot, could have been predicated thereon (Conger v. Treadway, 132 N. Y. 259), still this adverse possession ended when the body was removed, arid such removal was more than .twenty years before the contract for the sale of the property to the defendant. There is no other evidence of facts constituting adverse possession within the language of section 370 (supra).

The contract of sale was dated April-14, 1900, and acknowledged May 1, 1900. The deed was to’ be delivered May 17, 1900. On . November nineteenth Philomena M. Smith, “ individually and as general guardian for Anita Irene Cussen, Anita Irene Cussen (sic), and John Felix Smith, son of John F. Cleu,” executed a ■ quitclaim deed of the premises to the plaintiff. This deed attempted to convey the interest of Anita Irene Cussen, an infant under the age of fourteen years; no authority for the execution of such conveyance by her as guardian of. the infant is shown, and the deed was, therefore, fatally defective. ' .

The Statute of Limitations founded upon adverse possession has not run against Anita.

John F. Cleu-died in August, 1866. One of his daughters, Marie. Philomena, the mother of Anita, became of full age February 1, 1884. Allowing ten years for the statute to run against her, it would have run out in 1894. She, however, died in January, 1891, leaving Anita, her infant daughter, then about three years of age. Of course, the statute will -not begin to run against her until she becomes of age. (Code Civ. Proc. § 375.)

It follows that the plaintiff had not a good title to the lot in question, either of record or by adverse possession at the time of her contract of sale to the defendant, and has never tendered the conveyance óf a good and sufficient title.

As both parties to this controversy seem desirous of fulfilling tlie contract, it is proper to suggest that the title might be perfected by an application to the court to dispose of the interest of the infant Anita, under the provision of the Code providing for the disposition of the real property of infants. (Code Civ: Proc. § 2348 et seq.)

The judgment should be reversed and a new trial granted, with • costs to abide the final award of costs.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  