Baskin v. . Baskin

Pouter, J. The mere statement of the facts is decisive of the issue. The will was prepared in the presence of. the testator, and under his immediate direction. It received his approval, clause by clause. The whole instrument was then read to him, and he subsci’ibed it in the presence of the draftsman, who, at his request, signed it as an attesting witness. The other witness, Mr. Wilsey, was called in from an adjoining apartment, and the testator told him he wished him to sign the will. The instrument was then on the stand at his bedside, where he had just before subscribed it. Mr. Wilsey saw that his signature was already attached ; and the testator, taking the paper thus executed- in his hand, in presence, of both the witnesses, declared it to be his last will and testament. In compliance with his request, Wilsey then subscribed the attestation clause, which stated that the will was signed and published in presence of the attesting witnesses. It is clear that the testator intended- a complete execution of the instrument; that with this view he signed it; that he supposed he was acknowledging that he had done so, when he requested Wilsey to attest the truth of the facts stated in the certificate ; and that Wilsey so supposed, when he certified that he was a witness to the signature, as well as the publication. The remark of the testator, that “ This kills the other will,” would have been wholly unnecessary if he did not intend to acknowledge- the signature he had affixed to the later will, which- he held in his hand. The subscription and publication of a testamentary instrument are independent facts, each of which is essential to its complete execution (2 Revised Statutes, 1st ed. and Ed. ed. p. 63, §40). The requirement that the first shall be made-or acknowledged in the presence of eachof the witnesses who attest, it, is to identify and *17 antlienticate the instrument as one subscribed by the party. The requirement of publication in presence of each, is to prevent imposition upon the testator, by procuring him to execute and acknowledge a will, or codicil, under pretence that it is a paper of a different nature. The two prerequisites are distinct in their nature as well as tlieir purpose, and an omission to comply with either is fatal to the validity of the instrument. There must be satisfactory proof of the subscription and publication of the will, in the presence of two witnesses. In respect to the subscription, it is sufficient that it be either made or acknowledged in the presence of those who attest it. If it be unsigned, it is no will; and, in that case, publication and attestation are alike unavailing. If signed by another than the testator, and the signature be purposely concealed from his view, and that of the attesting witnesses, the mere publication of the instrument as his last will and testament cannot fairly be deemed an acknowledgment that the unseen subscription was made by his direction (Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 91-2; Lewis v. Lewis, 1 Kernan 220; Rutherford v. Rutherford, 1 Denio, 33). When, however, the testator produces a paper to wffiich he has affixed his signature, requests the witnesses to attest it, and declares it to be his last will and testament, he does all that the law requires. It is enough that he verifies the subscription as authentic, without reference to the form in which the acknowledgment is made ; and there could be no more unequivocal acknowd-edgment of a signature, thus affixed, than presenting it to the witnesses for attestation, and publishing the paper so subscribed as his will (Peck v. Cary, 27 New York, 9, 29, 30; Tarrant v. Ware, 25 ib. 425, note; Coffin v. Coffin, 23 ib. 9, 15, 16; Nickerson v. Buck, 12 Cushing, 332, 342; Dewey v. Dewey, 1 Metcalf, 353; Gaze v. Gaze, 3 Curteis 451; Blake v. Knight, ib. 547; White v. Trustees of British Museum, 6 Bingham, 310). The judgment of the Supreme Court should be affirmed.