In re Klett's Will — 24 N.Y.S. 721

Majority

p. 721

(3 Misc. Rep. 385.)

In re KLETT’S WILL. In re JONES.

(Surrogate’s Court, Westchester County.

April, 1893.)

Headnote

Wills—Proof of Execution.

In a proceeding in New York for the probate of a will executed in Pennsylvania 30 years before, the survivor of the three attesting witnesses testified that testator presented the will to him already signed, and requested him to sign, as a witness, but he did not remember whether the-other witnesses were present. The handwriting of testator and the deceased attesting witnesses was proved. ' Edd, that the evidence showed a compliance with the New York statute, which provides that the attesting witnesses shall sign at the request of testator, which is not required by the Pennsylvania statute.

Application by Franklin C. Jones, as sole surviving executory for the probate of a certified copy of a paper purporting to be the last will, with a codicil thereto, of Frederick Klett, deceased, late a resident of the city of Philadelphia, in the commonwealth of Pennsylvania. The paper in question related to land in Westchester county, in the state of New York, and was on August 3,1859,

p. 722

admitted to probate by the register of wills in Philadelphia.

Probate granted.

W. S. Allerton, for petitioner.

Stapler, Smith & Tomlinson, for F. K. Becldey and others.

Judging from the language of the attestation clauses of the will and codicil, and the proofs taken on the probate by the register of wills, the laws of the state of Pennsylvania do not require that the witnesses should sign at the request of the testator, while the law of this state does. In order that the will may be admitted to probate here, it must be proven to have been executed according to the laws of this state. The attestation clauses to the will and codicil are similar, and state that they were “signed, sealed, published, and declared” by the testator, “as and for his last will and testament, in the presence of us, who have hereto subscribed our names in the presence of the testator and of each other.” They do not state that they were requested by bim to so sign, and the proofs follow the attestation clause. Our law, as stated, requires this request, in some form, to be made. It need not, however, be so stated in the attestation clause. ■ That is no part of the will; and a will may be proven where there is no such clause, provided the witnesses can testify to facts showing a compliance with the requirements of the statute. In this case only one of three witnesses whose names are signed to the will is alive, and only one of three to the codicil; hence, if the will is susceptible of proof at all, it must be by the testimony of the living witness, and by proving the handwriting of the testator and of the subscribing witnesses, under section 2620 of the Code, and so of the codicil. Pleis, the living witness to the will, testifies that the testator presented the will to him, with his name already signed to it, and requested him to be a witness to his will, and that he signed it accordingly. This is all our statute requires, in so far as he was concerned; it having been repeatedly held that where the testator presents a paper with his name already signed to it, and decláres it to be his will, it is tantamount to an acknowledgment of his signature. He could not, after the lapse of more than 30 years, recollect whether the other witnesses were present; nor was it necessary that he should. The ■statute does not require that the witnesses should sign in the presence of each other. The handwriting of the testator and of the other subscribing witnesses to the will having been proven, as provided by the section referred to, the will appears to be sufficiently established, and is therefore admitted to probate.

The only surviving witness to the codicil is Richard J. Williams, a lawyer,- who drew the codicil to the will, and was present at its execution. He does not swear positively that he saw the deceased sign it, but believes that the attestation clause, commencing “Signed, sealed,” etc., states correctly what occurred, and says he signed as a witness at the request of the deceased, and that the other two witnesses either signed at the request of the deceased

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or at Ms (Williams’) request, with his- consent. The handwriting of Frederick Klett and of the deceased witnesses was sufficiently-proven by another witness. Row, while Mr. Williams does not directly testify that the deceased declared the paper to be a codicil to his will, yet he does say that he prepared the codicil at his bedside, and at his dictation, and that he believes the attestation clause, wMch states that he “published” the paper as such, to be true. There can be no reasonable .doubt, from these facts, that the deceased fully knew and understood the character of the paper which he was executing; and this fulfills the requirements of the statute in this respect. From the language of the codicil it is fair to infer that it was indorsed upon or appended to the will, for it says, “I, Frederick Klett, the within-named testator,” and refers correctly to the date of the will. I have heretofore held in Storm's Will, 3 Redf. Sur. 327, that the proving of the codicil, under similar circumstances, proves the will. Both are therefore admitted to probate.