Opinion
June 3, 1944.
Appeal from Surrogate of Delaware County.
The sole question presented is as to whether the proofs justified the Surrogate in finding that the testatrix duly acknowledged to the two attesting witnesses her subscription to her will. The will was holographic. The evidence justified the Surrogate in finding that after she had signed her will which was contained on a single sheet of paper, she handed it to each of the two subscribing witnesses who read it over and saw her signature thereupon; that in connection with such acts testatrix duly published and declared the same to be her will. We think that under the circumstances peculiar to this case the Surrogate was justified in finding a substantial compliance with the requirement of the statute as regards the testatrix's acknowledgment of her subscription. (See Baskin v. Baskin, 36 N.Y. 416; Matter of Will of Phillips, 98 N.Y. 267; Matter of Mackay, 110 N.Y. 611; Matter of Akers, 74 App. Div. 461, affd. on opinion below 173 N.Y. 620; In re Nussbaum's Estate, 144 N YS. 443; and Matter of Dodge, 129 Misc. 323, affd. 220 App. Div. 794. ) The decree appealed from should be affirmed, without costs. Decree affirmed, without costs. Hill, P.J., Heffernan, Schenck and Brewster, JJ., concur; Bliss, J., dissents on the ground that neither witness saw decedent sign the paper and decedent did not acknowledge her signature to either of them and thus there was no compliance with subdivision 2 of section 21 of the Decedent Estate Law.