
    Matter of Proving the Last Will and Testament of Frances Morris Delprat, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed May, 1899.)
    1. Will — Execution—Must be Declared to be a Will.
    Where one of the subscribing witnesses cannot be found, testimony of the other, a French woman, examined by commission, that the decedent subscribed the will in the presence of both witnesses, and requested her to sign the “ instrument ” as a witness, that she so signed and saw the other witness sign, but that she is positive that decedent did not declare that the instrument was her will, at least not in the French language, and that witness did not understand English, and testimony by the husband that he was present and he asked the missing witness to sign the “ instrument,” and that neither he nor the decedent informed the witnesses that it was a will, probate will be refused, even though the attestation clause was in proper form.
    2. Same — Force of Attestation Clause.
    When supported by other proof, the attestation clause becomes very important, but the formal proof may not be presumed from the attestation clause alone and against positive credible testimony.
    Proceedings upon the probate of a will.
    Joseph F. Hover, for proponent; Coudert Bros., for legatees;
    
      Maginnis & Blackwell, for contestants; Gilbert W'. Minor, special guardian.
   Fitzgerald, S.

The instrument offered for probate purports to have been subscribed by the decedent and signed by two witnesses. There is a full attestation clause. One of the subscribing witnesses cannot be found. The other, a French woman, was examined by commission and testified that the decedent subscribed the will in the presence of both witnesses, and requested her to sign the instrument ” as a witness; that she so- signed and that she saw the other witness sign. She testified positively that the decedent did not declare that the intrument was her will, at least not in the French language, and that the witness did not understand the English language in which the decedent conversed with the other subscribing witness. The husband testified that he was present at the time of execution and heard all that was said by the decedent to the subscribing witnesses; that he asked the missing witness to sign the instrument, and that neither the decedent nor he informed the witnesses that the instrument was her will. The only evidence of a declaration by the decedent is a statement to that effect in the attestation clause. When supported by other proof, the attestation clause becomes very important, and upon such- combined evidence wills have been sustained where the witnesses failed to recollect what took place at the time of execution, and even where they testified that the acts required by the statute had not been performed. The formal proof may not, however, he presumed from ,the attestation clause alone and against positive credible testimony. Woolley v. Woolley, 95 N. Y. 231; Lewis v. Lewis, 11 id. 220. The decedent requested the witness to sign the “ instrument.” The description of the paper by the witness as a “ will or agreement,” or as an instrument in ■ writing ” is insufficient. Rutherford v. Rutherford, 1 Den. 33; Wilson v. Hetterick, 2 Bradf. 427. It must be made to appear unequivocally that the testamentary character of the instrument was communicated by the testator to the witnesses. Lewis v. Lewis, 11 N. Y. 220; Ex parte Beers, 2 Bradf. 163.

Probate denied.  