
    Matter of the Petition for the Probate of a Paper Propounded as the Last Will and Testament of John C. Wilmerding, Jr., Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      January, 1912.)
    Wills—Probate, Establishment and Annulment—Necessity of Calling Both Witnesses—Holographic Wills.
    Where both of the subscribing witnesses to a holographic will positively swear that there was no publication of the instrument by the testator and that they did not know that it was a will until long after they had signed it, probate will be refused.
    See Note, I Mills Surr., 138.
    
      Proceeding upon the probate of a holographic will.
    Gay & Goddard, for petitioner.
    Wales F. Severance (Maurice Deiches, of counsel), for legatee Elizabeth Gordon.
   Fowler, S.

There being some difficulty in the proof of this will in the ordinary or common form before the clerk, I directed the proofs to be retaken before me. The will is a holograph. Holographic testaments are doubtless favored in probate law. In the civil law even the signature of the testator to a holograph was dispensed with. C. 6, 23, 21, pr. Under our old law, prior to the last century, if it were certain that a testament was written or subscribed by the testator, the testimony of witnesses was unnecessary. Swinb. 639; Gilb. Rep. 260. But since our present Statute of Wills, while the evidence of publication of a holographic testament may be somewhat relaxed, nevertheless a substantial compliance with the statute is essential ; and both publication and rogatio testkim, or a request to the witnesses to act as attesting witnesses, must be made out in some way to entitle such a testmentary paper to probate as a will. Matter of Phillips, 98 N. Y. 267; Matter of Beckett, 103 id. 167; Matter of Hunt, 110 id. 278, 281; Matter of Turell, 166 id. 330; Matter of Moore, 109 App. Div. 762, 765; affd., 187 N. Y. 573.

In this case both of the witnesses to the will of Mr. Wilmerding swear positively that there was no publication by the testator, and neither witness knew that the instrument which he subsigned was a will until long subsequently to the disruption of the session during which they so subsigned. As was intimated in substance in Matter of Moore, supra, it would be a dangerous practice to permit even a meritorious holograph to be established in defiance of the positive testimony of those who are the chief actors in a quasi public function. Such a precedent would be dangerous in the extreme, as it would tend to nullify the Statute of Wilis. There is, in this cause now before me, no resemblance to the latest case which I find reported on this subject. Matter of Marley, 140 App. Div. 823.

I am constrained to refuse probate to the paper propounded. Settle decree accordingly.

Probate denied.  