Opinion
February Term, 1900.
David McClure, for the appellants.
George G. De Witt, for the respondents.
The sole question here is whether the requirements of the statute as to the execution and attestation of wills were complied with. Mrs. Turell's entire will, including the attestation clause, was holographic. The attestation clause, however, was imperfect, both grammatically and in substance. It reads as follows:
"The foregoing instrument was by Serena D. Turell, the testatrix therein named, signed, sealed, published and declared on the day last above written, of and for will and testament and we, at her request, in her presence and in the presence of each other have hereunto subscribed our names as witnesses thereto."
These grammatical inaccuracies are of no moment, but as the will was not subscribed by the testatrix in the presence of the witnesses, the failure to attest that she made to them the alternative acknowledgment as to her subscription — which the statute authorizes — was substantial. Such a statement as that contained in this attestation clause might be honestly made by the witnesses upon outside information or upon their own acquaintance with the testator's handwriting. Neither hearsay nor knowledge of handwriting, however, is sufficient, for the statute requires either that the subscription shall be made in the presence of the witnesses or shall be acknowledged by the testator to have been so made to each of them. (2 R.S. [Banks' 9th ed.] 1877, § 40.) Here there was no such actual acknowledgment. Mrs. Turell pointed to the space beneath the attestation clause and requested the witnesses (Mr. and Mrs. Barnes) to sign there. We are asked from that single fact to infer a contemporaneous acknowledgment of her then visible signature. She did not even request the witnesses to read this imperfect attestation clause, nor was her attitude suggestive of an invitation to do so.
The paper was folded so as to conceal the contents of the will and to leave nothing visible save her signature and the attestation clause, She then put her fingers upon this clause and pointed, as already observed, to the space beneath it where the witnesses were to sign. Mr. Barnes testified that he could not read all the words in the attestation clause because some of them were covered by the testatrix's fingers. He managed, however, while writing his name, to glance over it and to read part of the clause; and while so glancing over it, he observed the words "will and testament." Even this cursory observation was, he "supposes," superinduced by curiosity. It certainly was not called forth by any desire expressed by the testatrix, or suggested by her acts or words, that he should dwell upon the clause or inform himself of its contents. Mrs. Barnes' observation was of the same character. Indeed, she seems to have had less curiosity with regard to what she was signing than her husband. She testified that she saw words over her signature, but paid no attention to them, as her interest was centered in putting her name where she did. She seems, however, to have read the first formal lines of the will, though when and how she was afforded that opportunity is not clearly disclosed. It is beyond dispute, therefore, that Mrs. Turell made no independent or formal acknowledgment of her signature to the witnesses. The appellants' contention is, first, that, as the signature was visible, its acknowledgment was sufficiently established by publication; and, second, that publication was sufficiently established by the attestation clause. In other words, that the acknowledgment of the signature was established by the mere act of pointing to the space beneath this imperfect attestation clause and requesting the witnesses to sign there. It must be noted, in this connection, that no suspicion attaches to these witnesses. They were undoubtedly conscientious, and so far from trying to destroy the will, they testified with apparent friendliness to the proponents, and with an evident desire to justify probate. When, therefore, these witnesses say that they have no remembrance of any word or expression on Mrs. Turell's part indicative either of an acknowledgment of her signature or of reference to the document as a will, it was equivalent to saying that no such word was uttered — no such expression conveyed. These witnesses had good memories as to what really happened upon the occasion in question. They recalled the incidents and gave many of the details. The time between the witnessing of the instrument and their examination in the Surrogate's Court was short — not quite two years. They recalled well enough the use of the word "document." As willing witnesses which, though truthful and honest, they apparently were, we cannot doubt that they would have recalled the essential and momentous word "will," which their surmises led them to expect, had the testatrix used that word or its substance, or in any manner conveyed it to their minds. And it would then doubtless have stood out in their memories more strikingly than any of the details which they so minutely recounted. The statements of these witnesses that they remembered what they testified to, and remembered nothing more, clearly amounted to saying that, beyond the incidents to which they had testified, nothing else of importance occurred — to the best of their recollection. There was, therefore, no direct evidence of an acknowledgment of the signature or of publication, and the only circumstances, outside of the insufficient testimony of the witnesses, from which an inference as to either statutory requirement can be drawn, are the visible signature of the testatrix, the visible attestation clause, the holographic character of both will and attestation clause and the request made by the testatrix to the witnesses to sign their names in the space beneath that clause.
We quite agree with the proponents that the holographic character of the will is an important consideration in their favor. It is not, however, decisive. The statute does not except even holographic wills from its requirements as to execution. It is true that the danger of fraud or mistake, which the statute was intended to provide against, is, in such cases, reduced to a minimum. Where the will is holographic, therefore, as was said in Matter of Application of Beckett ( 103 N.Y. 167), "criticism of the terms and manner of what is claimed to have been a sufficient publication need not be so close or severe as where the question whether the testatrix knew that she was executing a will depends solely upon the fact of publication." Still, there must be some evidence tending to show that the statutory requirements were observed, and if there be neither direct evidence of the testator's acknowledgment of his signature and of publication, nor circumstances from which these can fairly be deduced, even the holographic character of the instrument will not entitle it to probate.
If, then, there was here no publication the proof of acknowledgment of the signature wholly fails. There can be no doubt, as the result of the authorities, that the actual exhibition and disclosure by the testator to the witnesses of both will and signature, accompanied with a declaration of the testamentary character of the instrument, is a sufficient acknowledgment of the signature within the requirements of the statute. ( Baskin v. Baskin, 36 N.Y. 416; Matter of Will of Phillips, 98 id. 267; Matter of Mackay, 110 id. 611; Matter of Laudy, 148 id. 403.) The cases on this head are grouped in two classes. One is where the attestation clause alone is disclosed, the signature not being visible. Publication under these circumstances is not an acknowledgment of the signature. The other is, where both will and signature are visible, so that the character of the instrument is disclosed in connection with the visible signature. There due publication is a sufficient acknowledgment of the signature.
It is, however, as yet an unsettled question in the court of last resort, whether due publication suffices to establish acknowledgment of the signature where, though the latter be visible, the character of the instrument itself is physically concealed. An able surrogate (Rollins), after a careful review of all the authorities, held in Buckhout v. Fisher (4 Dem. 277) that the production and exhibition of the will, to which the signature was appended, were essential.
We need not consider the latter question, for the reason that, even if publication, with the signature alone then visible, would suffice (a point upon which we reserve our judgment), there must at least be an actual and unmistakable publication to justify the inference of a contemporaneous acknowledgment of the signature. The latter cannot be worked out from a mere inference of publication sought to be drawn from the exhibition of an imperfect attestation clause. That would be to draw one inference from another; and here it would be to draw it from an attestation clause which inaccurately attests the signature and does not purport to attest the alternative acknowledgment.
But, further, it is impossible here, upon the most favorable view of the circumstances disclosed, to deduce even the primary inference of publication as required by the statute. Not a word fell from the testatrix's lips, not an intimation was given by her, that the "document," as she called it, was a will. By no act, word or expression did she convey to the witnesses its testamentary character. Their surmise was not enough. Whatever knowledge they had was conjectural, or derived from accidental inspection — not from anything "said, done or signified" by the testatrix; and that did not meet the statutory requirement. ( Wilson v. Hetterick, 2 Bradf. 430, 431.) The single act of the testatrix was the previous preparation, and present presentation to the witnesses for their signature, of the imperfect attestation clause; her single word was the request to witness the concealed "document." As already observed, she did not even ask the witnesses to read what was written above the space where they were to sign. On the contrary, she hurried them through the formality of signature, with her fingers upon the attestation clause, and with an apparent desire to finish the business speedily and without enlightening them as to its nature.
To hold, even in the case of a holograph, that acknowledgment of the testator's signature and publication of the will may be made out by his single act of presenting to the witnesses the visible signature to a concealed instrument, followed by an imperfect and inaccurate attestation clause, which latter is covered in part by his fingers, and — without a word of explanation, with inconvenient surroundings, and in an atmosphere of haste — requesting them to sign their names in a designated space beneath, would in effect be to nullify the Statute of Wills.
The case for probate is here weaker than it was in The Matter of Will of Cottrell ( 95 N.Y. 329), where probate was sustained upon the ground that there was competent — though certainly slight — evidence to support the surrogate's conclusions of fact. The Court of Appeals, finding some competent evidence to support the surrogate's conclusions, deemed itself concluded thereby. Chief Judge RUGER, however, observed that "it would undoubtedly have been competent for the trial court in this case to have denied probate to the will in question upon the evidence before it, and in that event we should have been bound by its decision."
Our conclusion, upon a careful review of the evidence and upon full consideration, is that the findings of the learned surrogate were correct; that the testatrix neither signed the will in the presence of the witnesses, nor acknowledged to them that she had done so, nor did she declare it to be her will. Probate was, therefore, properly refused, and the decree should be affirmed, with costs.
VAN BRUNT, P.J., RUMSEY, INGRAHAM and McLAUGHLIN, JJ., concurred.
Decree affirmed, with costs.