
    (88 Hun, 56.)
    In re FISH’S WILL.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    Wills—Attestation after Death of Testator.
    A will is not attested as required by law where one of the witnesses signed after the death of testator, though testator had requested the witness to sign, but died before the witness could do so.
    Appeal from surrogate’s court, Monroe county.
    Proceeding for the probate of the will of. Eliza A. Fish, deceased. From a decree adjudging that the instrument offered for probate was not executed as required by statute, and refusing probate thereof, and also from an order denying a motion to open and vacate said decree, proponent appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
    Hannibal Smith, for appellant
    P. Chamberlain, for respondent
   LEWIS, J.

The instrument presented as the will of Mrs. Fish was prepared as directed by her. It was presented to her for execution just previous to her death. She was aware of its contents. She was exceedingly feeble, and not able even to subscribe her name to the will without help. By the assistance of Drs. Morris and Williams, two physicians who were in attendance upon her, she was raised in bed to a partially reclining position, and Dr. Morris guided her hand, and a mark was made as and for her signature to the instrument Dr. Morris subscribed his name to the paper as a witness, in the presence of the deceased, and then requested Dr.„ Williams to subscribe his name. Dr. Williams was at the time standing by Mrs. Fish. She had, in consequence of the exertion made in subscribing the will, become very much exhausted. She remarked, “I am dying; I feel so weak,” and died before Dr. Williams had affixed his name to the document It is quite doubtful if Mrs. Fish was at all conscious of what was occurring at the time Dr. Morris signed his name. Dr. Williams, soon after Mrs. Fish died, at the suggestion of Dr. Morris, subscribed his name to the instrument as a witness.

We assume, in deciding this appeal, that all the requirements of the statute for the due execution of the instrument as a will were complied with, with the exception of the omission of Dr. Williams to become a subscribing witness during the lifetime of Mrs. Fish. The proof, however, that Mrs. Fish ever requested Drs. Morris and Williams to become subscribing witnesses is somewhat unsatisfactory. We do not think it necessary to rehearse the evidence bearing upon that question, for we consider the fact that there was but one subscribing witness when Mrs. Fish •died to be fatal to the validity of the instrument as a will. The statute requires that a will shall have at least two witnesses, and they must, we think, become such during the lifetime of the testator. If the act of subscribing by the witnesses can be performed immediately after the death of the principal, and the instrument be valid, it may be done in a month or a year thereafter with the same effect, A will takes effect at the instant the testator dies. If the contention of the appellant should prevail, the .anomaly might be presented of the disposition of an estate being suspended intermediate the death of the testator and the time the witness or witnesses shall perform the act of subscribing their names to the instrument. The final disposition of the estate would thereby be made to depend, not solely upon the intention of the testator, but upon the will or caprice of one who had been requested to perform the very simple act of becoming a witness. The legislature never intended to give to subscribing witnesses such power. Such construction would tend to break down the barriers to frauds which the statute was enacted to prevent.

In construing this statute, it is the intention of the legislature that must be kept in mind, and not that of the testator. Mrs. Fish could at any time before her death have revoked her request to Dr. Williams to become a subscribing witness to her will. Had she done so, he could not have acted in that capacity. After making such a request, her wish that he should become a subscribing witness would be presumed to have continued until he performed the act, in the absence of evidence of revocation of his authority. It was incumbent upon those propounding the will for probate to establish, either by affirmative or presumptive evidence, that such desire upon the part of Mrs. Fish existed at the time the witnesses subscribed their names. The undisputed evidence, shows that such desire did not exist at the time Dr. Williams subscribed his name, for Mrs. Fish was then dead. A will must be a valid, perfect instrument at the time of the death of the testator. It takes effect at the instant the testator dies. If invalid then, life cannot be given to it by the act of a third party.

It is not necessary to consider the question raised by the appeal from the order of the surrogate denying the appellant’s motion to open the decree which refused probate of the will. As the fact that one of the witnesses did not sign the attestation clause until after the death of Mrs. Fish is, we think, fatal to the validity of the instrument as a will, opening the decree would not in any way benefit the appellant.

The decree and order appealed from should be affirmed, with costs against the appellant. All concur.  