
    Brown v. De Selding and others.
    It is not necessary, in order to the proper execution of a will, under the revised statutes, that the witnesses who attest the same should have been requested in terms by the testator to attest its execution. The request may be implied as well as expressed.
    Where witnesses are sent for by the attendants of the testator, in his presence anil without objection, and upon their introduction he sets himself to the execution of the will, and delivers it, when executed, to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of the attendants, and makes their request his request, within the spirit and meaning of the statute.
    No particular form of words is necessary in the publication of a will, in order to comply with the statute. It is sufficient if the requisitions of the statute are complied with in substance. There must, however, be a declaration by the party, to the attesting witnesses, that the instrument witnessed is his will.
    Where the testatrix, at the time of the execution of the alleged will, merely asked “ where was the proper place for her to sign,” the will not having been read by her nor to her, nor any thing said concerning its contents, nor any thing said or done by her in the presence of the attesting witnesses, by which she indicated that the paper subscribed by her was her will; held, that the instrument was not declared or published as a will within the meaning of the statute.
    (Before Duna, Mason, and Campbell, J. J.)
    May W;
    May 25, 1850.
    This was an appeal from a decree of the surrogate of. the county of New York, admitting to record and probate, the will of Ilerriott Brown, deceased.
    The facts of the case, as they appeared in the testimony, were as follows: Miss Ilerriott Brown, the testatrix, died in the city of Washington, op. the first day of July^ 1847. At the time of her sickness and death, she resided with Charles De Selding, one of the respondents, who had married her sister Helen, and who, together with the appellant, were her only heirs and next of kin. The execution of the alleged will took place “ on one of the last days of June,” 1847, at the residence of the respondents. The instrument is drawn in favor of Julia De Selding and Charles E. E. GK De Selding, minors, the children of Helen De Selding, with an interest by way of remainder, to their mother, in case of their death without issue. Mr. De Selding was made executor. The attesting witnesses were William P. Johnston and Alexander N. Zevely, who were examined under a commission issued by the surrogate. The witness, Johnston, was the attending physician of Miss Brown during her illness, which lasted eight days. His visits during this time were very frequent. At one of these visits, within four or five days of her death, he found Mrs. De Selding in the room with Herriott Brown, who was lying in bed. Mrs. De Selding said to the witness, that her sister wished to sign a will. Dr. Johnston remarked, if she wished to do so, it would be best to have another witness, and that she had better execute it at once, and thereby relieve her mind. Nothing was said by Herriott Brown, nor did she join in the conversation. Dr. Johnston remarked that he would step out and call in another person to be a witness. He did so and brought in Alexander N. Zevely, who came in at the doctor’s request, and signed the instrument as a witness. Mr. Zevely had never before seen Miss Brown, and never saw her after this occasion. When Dr. Johnston returned with Mr. Zevely to the house of Mr. De Selding, he left Mr. Zevely in the parlor and went to the room of Miss Brown. When he entered the room, the instrument in question was lying upon the table. The doctor informed Miss Brown that it would be necessary for her to get up and sit at the table to sign it. The language used by the doctor was, that if “she wished to sign,” or “ to sign her will,” but which was the precise expression, he was unable to state. Miss Brown was accordingly assisted to the table, where the paper was then lying. When Mr. Zevely came into the room, he was introduced to Miss Brown and Mrs. De Selding, by the doctor. Miss Brown inclined her head in recognition, but did not speak. Prom a difficulty in her breathing, it was apparently hard for her to talk. Soon after, or at the time of his introduction according to Mr. Zevely’s testimony,’ Doctor Johnston mentioned to Miss Brown, that Mr. Zevely was a person whom he had invited to come in and witness her signature to her will. Johnston, in his testimony, stated all the conversation which he remembered, but did not give this remark. He testified “that Miss Brown inquired “ where she must sign the will, and on the place being pointed out, took the pen and signed.” Mr. Zevely testified, “she distinctly asked where the proper place was for her to sign.” In a subsequent portion of his testimony he spoke of “her question about where to sign,” and ■in another, of “her asking the question about the place where to sign’the will.” The will was signed in the' presence of Dr. Johnston, Mr. Zevely, and Mrs. De Selding, the two former of whom thereupon signed their names as witnesses in the presence of. Miss Brown, and of each other.
    No conversation took place between the witness, Zevely, .and Miss Brown, at the time the instrument in question was signed, and none other than what is above specified, occurred between her and Doctor Johnston, nor- was there any conversation on the part of Mrs. De Selding, except in reference to other matters. The instrument was not in the handwriting of Miss Brown, and nothing was said as to who had written or prepared it. Nothing was said by her as to its contents, nor did she read it, or have it read to her. The execution of it throughout was conducted by Mrs. De Selding. Both of the witnesses testified to Miss Brown’s capacity and soundness of mind, and that she acted like one who /understood perfectly what she was doing.
    
      I. Dayton, for the appellant,
    argued the following points:
    I. The will was not executed according to the statute, prescribing the manner of the execution of wills. (2 E. S. 63, § 32 (sec. 40); Brinckerhoff v. Remsen, 8 Paige, 488, 498; Remsen v. Brinckerhoff, 26 Wend. 325, 331, 336, 337; Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92.)
    
      II. The instrument in question not being in the handwriting of the deceased, and its execution haying been conducted in her last illness, by Mrs. De Selding at her residence, who, by her children, or herself, takes under it the whole property of the deceased to the exclusion of her other sister, equally entitled by kindred, the testimony in the cause was not sufficient to establish it as the will of the deceased.
    In such cases the law requires in addition to evidence of capacity, that there should be proof either of previous intentions to make the dispositions contained in the alleged will, or of instructions, or of reading it over at the time of the execution, or of subsequent recognition of the provisions of the instrument. (Swinburne, Part 2d, sec. 25, 7th ed. vol. 1, pp. 187,188; Taylor on Evidence, 108, sec. 105; Brogden v. Brown, 2 Add. 441; Billinghurst v. Vickers, 1 Phill. 187; Paske v. Ollatt, 2 Phill. 323; Ingram v. Wyatt, 1 Hagg. Eccl. Rep. 384; Marsh v. Tyrrell, 2 Hagg. Eccl. Rep. 84; Panton v. Williams, 2 Curteis Eccl. Rep. 530, 535; Barry v. Butlin, 2 Moore Priv. Coun. Cas. 480; Dufain v. Croft, 3 Moore Priv. Coun. Cas. 145; Harwood v. Baker, 3 Ib. 282; Tomkins v. Tomkins, 1 Bailey South Car. Rep. 96; Alston v. Jones, N. Y. Gren’l Term, June, 1848; Crispell v. Dubois, 4 Barb. S. C. Rep. 393.)
    III. Both the witnesses to the instrument in question, residing without the jurisdiction of this State, the surrogate had not jurisdiction to take the proof of the instrument as a will of real estate. 2 R. S. 66, § 78 (sec. 63).
    
      H. Ketchum, for the respondent,
    argued the following points:
    I. The will was proved to have been executed in a manner substantially to comply with all the requisites of the statute. (Remsen v. Brinckerhoff, 26 Wend. 325; Rutherford v. Rutherford, 1 Denio, 33; Butler v. Benson, 1 Barb. S. C. R. 534; Doe v. Roe, 2 Ib. 200; Seguine v. Seguine, Ib. 385; Robertson v. Carr, 8 Ib. 416; Chaffee v. Baptist Missionary Convention, 10 Paige, 85; Jauncey v. Thorn, 2 Barb. Ch. R. 40; Nelson v. McGiffert, 3 Barb. Ch. R. 162 ; Crispell v. Dubois, 4 Barb, 394.)
    II. The capacity of the testatrix was abundantly proved. 
      (Stewart's Ex. v. Lispenard, 26 Wend. 255; Blanchard v. Nestle, 3 Denio, 37.)
    III. The will is just such a will as the testatrix would be expected to make, considering all the circumstances.
    IY. The surrogate had complete jurisdiction in the case, and the will has been properly received to probate as a will of real and personal estate. (2 R. S. 60, § 23; Laws of 1837, 524, chap. 460, § 1; 2 R. S. 67, § 63; Laws of 1837, 537, chap. 460, § 77; Dayton on Surrogates, 38.)
   By the Court.

Mason, J.-

-The thirty-second section of the statute of wills, enacts that every last will and testament shall be executed and attested in the following'manner:

1. It shall be subscribed by the testator at the end of the will.

2. 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.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. (2 R. S. 63.)

In the case before us, the will was subscribed by the testatrix at the end of the will, in the presence of two attesting witnesses, each of whom signed his name as a witness at the end of the will; and the only questions are, 1st, Did each so sign at the request of the testatrix ? and, 2d, Did the testatrix, at the time of such subscription, declare the instrument to be her last will?

As to the first question; It is not necessary that the testator should in terms, request the witnesses to attest the execution. The request may be implied as well as expressed. If they are sent for by his attendants in his presence and without objection —if upon their introduction he sets himself to the execution of the will, and delivers it when executed, to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of his friends, and makes their request his request, within the spirit and meaning of the statute. ’ This was so held in Doe v. Roe, 2 Barb. S. C. R. 200. It v^as stated in that case, to the witnesses, in the testator’s presence, that they had been sent for, for the purpose of being witnesses to the will, and they subscribed their names as wit-messes, after the will with the attesting clause had been read to the testator, and signed by him in their presence, and it was held that there was sufficient evidence to be submitted to a jury, upon the question whether there was a request or not. The same point was decided in Rutherford v. Rutherford, 1 Denio, 38.

The testatrix in this case made no formal request to the witnesses. She appears to have been entirely silent. But when Mrs. De Selding stated to Dr. Johnston, the physician, that her, sister wished to execute a will, he said, if she wished to do so it would be best to have another witness, and he went out immediately and brought in Mr. Zevely, the other witness. The testatrix made no objection then, nor when the doctor returned, on the contrary, she got up and went to the table where the will was lying. Upon Mr. Zevely’s coming into the room, after she was seated at the table, he was introduced to her by the doctor, as a person whom he had invited to come in and witness her signature, to the will, and she bowed her head in recognition, and then distinctly asked where she must sign, according to Zevely’s testimony, or according to Dr. Johnston’s where she must sign the will. She then signed it in their presence, and they signed their names as witnesses. There can be no doubt from all the circumstances, that she assented to and adopted the acts of her sister and Dr. Johnston in relation to the latter witnessing and inviting Mr. Zevely to witness the execution; and this^ratification and adoption is clearly equivalent to an express request by her.

The next question is — Did she declare the paper to be her last will and testament in the presence of the witnesses ? It has frequently been decided that no particular form of words is necessary in the publication of a will in order to comply with the statute. It is sufficient if the requisitions of the statute are complied with in substance. (Nelson v. McGiffert, 3 Barb. Ch. R. 163; Remsen v. Brinckerhoff, 26 Wend. 332.) In Doe v. Boe, 2 Barb. S. C. R. 200, before cited, the will was read over to the testator, and he was asked if that was his will and testament, to which he answered in the affirmative, and then signed it; and the court held that this mode of declaring the instrument to be his will, was a substantial compliance by the testator with the statute, but it is definitely settled by the court of dernier resort, in Remsen v. Brinckerhoff, that there must be some communication to the witnesses by the testator, indicating that he intended to give effect to the paper as his will; and, therefore, the court in that case held, that although the testatrix acknowledged before the witnesses her signature to the instrument for the purposes therein mentioned, yet as she did not say it was her will, it could not be upheld without a repeal of the statute. Now in this case, nothing whatever was said by the testatrix, except the single question where she must sign. Dr. Johnston says she asked where she must sign the will; but it is evident that he does not intend to give the exact words. Mr. Zevely says she distinctly asked “ where was the proper place for her to sign.” But the will was not read to her before signing it, nor did she read it, or say any thing concerning its contents, nor was any thing said or done by her in the presence and hearing of the witness Zevely, by which she signified to him that the paper subscribed by her was her last will; she merely signed the paper, and did not even acknowledge her signature, as was done by Mrs. Brinckerhoff. It is true that the witness understood from what passed, that the instrument was a will, and that such was her understanding also; but there was no recognition of it as her will in Zevely’s presence, beyond the simple signature, nor in the presence and hearing of Dr. Johnston, unless she used the word “ will” when she asked about the place to sign.

It is fairly to be inferred in the case of Mrs. Brinckerhoff, that all parties also understood tbe paper to be a will; one of tbe witnesses put his residence opposite to bis name, and the testatrix remarked to the other witness that be bad not done so, and required him to do it, wbicb would have been unnecessary in attesting tbe execution of any other instrument. But yet tbe court held tbe acknowledgment to be insufficient. If we should bold tbe mere signing of a will of any act equivalent to it, without any declaration either before or after signing in tbe presence and bearing- of each of the witnesses, to be a sufficient publication, we should disregard tbe plain letter of tbe statute, wbicb requires that tbe testator shall, at tbe time of making the subscription, declare tbe instrument to be bis last will. Tbe utmost that can be said of this case is, that tbe conduct of tbe testatrix implied tbe instrument to be her will But no declaration of any kind is pretended. We do not see bow it is possible to get over this defect.

' It is not without considerable hesitation that we have arrived at this result. We have no doubt, from tbe evidence, that tbe deceased was fully competent to make a will, and under tbe law as it now exists in England, and as it was understood in this state before tbe passage of tbe revised statutes, this will would have been held to have been duly published. But tbe revised statutes have somewhat altered tbe rule, and tbe alteration is, we think, wise and salutary. Whether it is so or not, it is our duty to carry out tbe provisions of tbe statutes on this subject in their letter and spirit. If we are mistaken an our application of them to tbe present case, we are happy to know that our mistake can be corrected by a higher tribunal.

Tbe decree of tbe surrogate is erroneous, and. must be reversed, and a decree must be entered declaring the invalidity of tbe instrument propounded as a will, and that tbe decedent died intestate. Costs of both parties, both in this court and the court below, are to be paid out of the estate when letters of administration shall have been granted, and the- proceedings-are to be remitted to the surrogate of tbe county of New York, to tbe end that administration may be granted as in cases of intestacy.  