In re Baumann's Will

[1] This leaves but one question to be considered, namely: Were the statutory requirements fulfilled? Section 21 of the Decedent Estate Daw, being Laws of 1909, c. 18, constituting chapter 13 of the Consolidated Laws, prescribes the four steps which must be taken to legally execute and attest a last will and testament. Of these four steps, three were fully complied with; the only question that could possibly arise is whether the subscription to the document was, a subscription made by the testatrix. It is well settled that the time when the testatrix declares the document to be her will in relation to the time when she signs the same is of no importance, so that whether the testatrix declared this instrument to be her last will and testament just before .she signed it, or while she was in the act of signing it, or immediately after she signed it, is of no moment, if, as a matter of fact, she did sign it, and the signing, declaration, and attestation of the witnesses were ail a part of one testamentary act and consummated at one time. Doe v. Roe, 2 Barb. 200 ; Lewis v. Lewis, 13 Barb. 17 ; Keeney v. Whitmarsh, 16 Barb. 141 ; Jackson v. Jackson, 39 N. Y. 153 . I am also of the opinion that the subscription made as shown by the evidence was a subscription by the testatrix.

[2] The law upon the question as to how far assistance may be rendered to a person unable to perform the physical act of signing his name has been well stated in Matter of Kearney, 69 App. Div. 481 , at pages 483, 484, 74 N. Y. Supp. 1045 , 1046, 1047. The court in that case said:

“If a testator is physically unable to sign his name, but requires assistance, he may call in another to his aid, even to the holding of his hand' and guiding it. ■ The extent of that aid, so long as it is assistance, does not make the signature invalid, if the signing was in any degree an act of the testator, acquiesced in and adopted by him.' * * * The question whether the signature is the act of the testator does not turn upon the extent of the aid, but whether the aid was assistance or control. * * * The testator’s mental conception that he desired to sign the will may have been entirely clear, and yet his relative physical power, compared with that of the assistant, may have been almost nil. His mind may have willed the physical action of signing, and yet his hand may almost have refused to obey his mind, so. that, when his hand was taken-in the hand of a man in good health, it "may have" been almost passive or have yielded almost absolutely to the .superior force,-so as

to have lost the power to make its own peculiar letters; yet so long as there was the conscious wish of the testator that his hand should make the signature, and he participated in any degree in the making of it and acquiesced in and adopted the signature thus made, it was sufficient.”

With the above statement of the law, I am in accord.

[3] The contestant lays some stress upon the fact that there is nothing in the evidence which shows that the testatrix acknowledged the signature to be hers, but I do not deem this of importance, because the subscription was actually made in the presence of the witnesses, and if it was a subscription by the testatrix made in the presence of the witnesses, as I have found, even though made with the assistance of some one else, an acknowledgment was unnecessary.

Upon the whole testimony, I find that the will was executed in accordance with the statute by a person competent to make the same, and it will accordingly be admitted to probate. Costs to the proponent payable out of the estate. Settle findings and decrees on two days’ notice.

Decreed accordingly.