In re the Will of Hyland

The decedent signed his will by a mark. On the face of the paper it was properly attested by two subscribing witnesses, whose signatures follow the recitals in a full attestation clause. One of them, Metz, has since died. Lawler, the surviving witness, testifies to all the facts necessary to show the -proper execution of the instrument. The provisions of the Revised Statutes and of the Code, in respect to the execution of wills, are substantially alike. 3 Rev. St. (6th ed.) p. 59, § 11.; Code Civ. Pro. § 2620. The language of the Code is:

“ If all the subscribing witnesses, or, if a subscribing witness is dead, * * * the will may nevertheless be established upon

The real question to be decided is whether the evidence of Lawler, the surviving witness, of the making of the mark by the decedent, without confirmatory testimony by others, is sufficient under the law, to admit the will. The subject has been considered by various surrogates in this state. In 1867, Surrogate Tucker, of this county (In re Walsh, 1 Tuck. 132 ), held that a will subscribed by a mark could not be admitted if the second subscribing witness could not be produced. In 1870 the surrogate of Orange county criticised this conclusion, holding that Surrogate Tucker might have overlooked an important particular of the section of the statute which provided for the- proof “ of such other circumstances as would be sufficient to prove such will on a trial at law ; ” and he held that, if .others present at the time of the execution proved the making of the mark by the testator, it was sufficient to admit the will to probate. In re Simpson's Will, 2 Redf. Sur. 29. In 1886, in re Reynolds' Will, 4 Dem. Sur. 68, Surrogate Coffin, of Westchester county, stated that in such a case “ it is indispensably requisite that the handwriting of the testator be proven, which can be done by some one sufficiently familiar with the cast or form of the writing of the person to enable him to identify it as his, but that a cross mark has no such cast or form as to distinguish it from a like mark made by any other individual, and cannot be the subject of expert testimony ; but the difficulty would doubtless be obviated were witnesses able to testify that . they were also present, and saw the deceased make his mark.” As there was no other than the surviving subscribing witness present to prove the fact, probate was refused. In 1887, in Worden v. Van Gieson, 6 Dem. Sur. 237, the surrogate of Monroe county denied probate of a will signed by a mark. It had a full attestation clause. Smith, the attorney who drew the paper, and was a subscribing witness, was dead. The other witness testified to Smith’s signature, and said that, though the decedent told him the paper was her will, and how she made it, he did not see her sign it, nor did she tell him that she had signed it. In the absence of other testimony, the surrogate held that there was a failure of proof of either the signing or the acknowledgment of the mark. In re Dockstader, 6 Dem. Sur. 106; 19 St. Rep. 245 , the surrogate of Montgomery county took a view radically different from those expressed in antecedent decisions, holding the testimony given by a living subscribing witness of the making of the mark by a testatrix was proof of her handwriting, and was sufficient In 1889, in re Phelps, 5 N. Y. Supp. 270 ; 22 St. Rep. 896 , led by the general current of previous decisions, I denied probate to the will. The decedent was a patient in a hospital in Philadelphia, and the two subscribing witnesses were Stewart, the hospital apothecary, who was the draughtsman of the paper, and Kennedy, a patient who died before it was offered for probate. The will had a full attestation clause. Stewart was examined under a commission, on interrogatories more or less formal in their character, and Ms

“ It was therefore necessary, in order to establish this will, that the signature of the testatrix should be proved. This could be done by any person who saw her make her mark, or by her acknowledgment that she had so executed the will to each of the subscribing witnesses. As we have seen, the only evidence upon the subject is the fact of her publication of the instrument by declaring it to be her last will and testament. The question is, therefore, is this a compliance with the statute as an acknowledgment of her subscription to the will ? ” The court held that it was not, and on this ground affirmed the decision of the surrogate. But Judge Haight did not give any opinion as to the sufficiency of the evidence of the surviving subscribing witness if he had testified that all the requirements of the statute had been complied with, including the making of the mark by the -testatrix, or the acknowledgment of it as her signature. Nor was the question considered whether the attestation clause could be accepted as evidence of execution, though in several cases it had been so decided by the court of appeals. Hence, we have no decisions in our state, except the few rendered by the trial judges, and in these we have seen the conclusions in some cases are diametrically opposed, and in the others an intermediate ground is taken.

As the adjudications in other states and even in the English courts, so far as I have been able to investigate them, do not furnish a parallel case, I deem it advisable to review the subject in the light oE elementary principle, in the hope that my decision may afford a precedent that will be accepted until a higher tribunal shall find' otherwise. What constitutes “ handwriting,” in the legal sense of the term, must be considered. It is defined to be the “ cast or form of writing peculiar to each hand or person.” If the decedent, in forming his signature had made an effort to form the letters of any known alphabet, but had so far failed that no letter bore resemblance in form to the one it was intended to reproduce, and the aggregate could only be recognized as his signature by those who had seen him write, and were familiar with its general appearance, the testimony of the surviving witness, if it ■commended itself to the confidence of the court, even without an

“It was always considered to afford a strong presumption of compliance with the requirements ofthe statute in relation to the execution of wills that they had been conducted under the supervision of experienced persons familiar, not only with the forms required by law, but also with the importance of a strict adherence thereto.”

Applying these principles to the matter under consideration, I hold that the testimony of Lawler, with nothing to throw discredit upon his statement that he saw the decedent make his mark, is sufficient evidence of the fact, when considered in connection with all the circumstances attending the transaction. The written portions of the paper are in the handwriting of Metz, the deceased subscribing witness, who was a lawyer. It is intelligently drawn, is couched in the language of the law appropriate to such documents, and has a full attestation clause. An entry in the cash book of Metz shows money received for services in the matter about the time of the execution. Lawler, the living witness, testifies that the testator declared the paper to be his will, that he requested each of the subscribing witnesses, to attest the execution by their signatures, and that each did so ; and the signature of Metz is proved by the evidence of two persons. The will is a natural one.. There is nothing suspicious on its face. All the circumstances attending its original execution, as set forth in the