In re Abercrombie's Will

ment that every last will and testament of real and personal property shall be subscribed by the testator at the end thereof; and that “such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him. to have been so made, to each of the attesting witnesses.” 2 Rev. St. p. 63, § 40. This statute was enacted to guard against fraudulent interference with the wills of deceased persons; and, although there is an absence of any element of fraud in this case, we must nevertheless be governed in the disposition to be made of it by the provisions of the statute above quoted, which are intended for general, and not special, application. Sisters of Charity v. Kelly, 67 N. Y. 409 -416; In re O’Neil, 91 N. Y. 520 ; In re Whitney’s Will, 153 N. Y. 259 , 47 N. E. 272 . It has been held, it is true, that a substantial compliance with the statute prescribing formalities to be observed in the execution of wills is sufficient, as, where the words of request or acknowledgment proceed from a third party, but in the presence of the testator, and under circumstances tending to show that they were adopted by him (Gilbert v. Knox, 52 N. Y. 125 ; In re Voorhis’ Will, 125 N. Y. 765 , 26 N. E. 935 ); or where, as in the present case, the name of one of the attesting witnesses was signed by his co-witness (In re Strong’s Will [Surr.] 16 N. Y. Supp. 104 ). But this rule will not aid the respondent’s contention, because it can hardly be claimed,' in the circumstance's of this case, that the instrument in question was executed in substantial compliance with the provisions of the statute. As we have seen, it was not signed in the presence of the attesting witnesses, nor did either of them ever see the signature, if there was one; and but one of them is able to state that the deceased in any manner acknowledged having attached her name to the paper. Now, it is the subscription, and not the instrument, which the statute requires to be acknowledged; and a signature which is neither seen nor identified can in no proper sense be said to have been acknowledged by the mere statement that it had been affixed to a paper which was characterized as a will. Holt v. Genge, 3 Curt. Ecc. 160; Chaffee v. Society, 10 Paige, 85; Lewis v. Lewis, 11 N. Y. 220 ; Mitchell v. Mitchell, 16 Hun, 97 , affirmed 77 N. Y. 596 ; In re Mackay’s Will, 110 N. Y. 611 , 18 N. E. 433 ; In re Laudy’s Will, 148 N. Y. 403 , 42 N. E. 1061 . In the case last cited there was thought to be a conflict of evidence respecting the subscription of the decedent’s name to the instrument in question, and the issue of fact thereby presented was ordered tried before a jury. Upon the trial which was subsequently had one of the attesting witnesses did not claim to have seen the signature of the decedent, but the other testified that, while the instrument was evidently so folded as to prevent his seeing what was written, he had, by reason of the accidental raising of the edge of the fold, observed some writing which he could not read where the decedent’s signature was said to have been written. It further appeared that the decedent had in fact signed the instrument, and the evidence was sufficient to warrant the inference that she declared to the witnesses that she had subscribed the same. The jury found that the subscription of the deceased was acknowledged by her to each of the witnesses, and the

trial court adopted their verdict; but upon appeal it was held by the appellate division in the First department that the evidence was insufficient to sustain the finding that there had been a proper acknowledgment within the statute, and a new trial was granted. In re Laudy’s Will, 14 App. Div. 160 , 43 N. Y. Supp. 689 . We think the evidence of acknowledgment in the case cited was quite as favorable to the proponents as is that in the present case, and, if it was insufficient to answer the requirements of the statute, we do not see how the conclusion of the learned surrogate in this case can be sustained. The decree of the surrogate should be reversed, and a rehearing had, with costs to abide the event.

Decree of the surrogate’s court reversed, and a rehearing ordered, with costs of this appeal to the appellant, payable out of the estate, to abide the event. All concur.