In Re to Revoke the Probate of the Will of Phillips

Batallo, J. The will in question in this case was a very brief and simple instrument, drawn wholly in the testator’s own hand, and, including the signatures of the testator and the witnesses, was contained on a single page, so that the signature of the testator was necessarily éxposed plainly to the subscribing witnesses, whose signatures were immediately below that of the testator. There, was no attestation clause, but on the left side of the page, and below where the testator’s signature was written, was a space evidently intended for the signatures of the witnesses, inclosed in a bracket, opposite the centey of which was written in the testator’s hand the word “witnesses.” The names of three witnesses were written in this space to the left of the bracket. The original will was produced on the argument of this appeal, and the date and signatures appeared in the following form: “ Dated, this 26 day of February, 1879. “LEWIS S. PHILLIPS. “ James A. Skinner, “ Win. A. Beach, “John B. Strant, Witnesses.” *272 Only two of these witnesses, viz. : James A. Skinner and Wm. A. Beach, were examined before the surrogate. • It is conceded by the appellants that the testimony of Skinner, on his direct examination, was sufficient to show a compliance before him, with the requirements of the statute. ' It was contended, at the General Term, that sufficient was shown on his cross-examination to cast discredit upon the statement made on his direct, but on this appeal we are limited to the review of questions of law, and the facts are not open to examination. It is enough to say that, taking his whole testimony together, it was quite sufficient to authorize the findings of the-surrogate. The only material points in the case arise upon the testimony of Wm. A. Beach. He was a practicing lawyer, well acquainted with the testator, and knew his handwriting. He testified that while he was in his office engaged in writing, the testator entered and said he had a paper which he desired him to witness. That the testator produced it and laid it in front of witness, on the table, as witness was writing. That witness commenced writing his name, and while witness was writing his name, the testator told him that it was his last will and testament, and that he wanted witness to sign his name as a witness. That witness then stopped, and a conversation ensued.in which witness expressed the opinion that the instrument was informally drawn, and advised him to have it re-drawn, the principal objection being, that it had no attestation clause. The testator said he had no fears of .it, having drawn it himself from the will of some other person, whom he named. A discussion of some length seems to have taken place at that time, which it is not necessary to repeat. The witness was then asked: “ Q. When did yon finish your signature ? A. When he had finished talking. Q. After he had told you what it was? A. Yes, sir. Q. Was his name signed at the time? A. It was.” The witness further testified that after he had signed the will, the testator put it in his pocket. And after some further conversation, the testator left the room. On the cross-examination of this witness, he was questioned *273 as to the reason of his not having added his place of residence to his signature,, and the effort was made to show that he did not regard the attestation as concluded, and had the impression that, on account of the criticisms he had made, the testator intended to have the will re-drawn. The testimony on this point is by no means clear, and the surrogate found as matter of fact that after the will had been attested by the witness Skinner, the testator took the will to the office of the witness William A. Beach, produced the will, laid it in front of him on the table, with his signature visible on the face of it, told Beach it was his last will and testament, and that he wanted him to sign his name as a witness, and that Mr. Beach did then and there subscribe his name as a witness to said will, and with the intention of becoming an attesting witness thereto, in the presence of the testator; and the surrogate refused to find as requested by the appellants, that at the time the testator took the will from Mr. Beach’s office, he did not regard it as a completed will, or that Beach did not then think that the testator regarded the same as an executed will, but supposed he intended to have it re-drawn. We think the evidence fully capable of the construction put upon it by the learned surrogate, and that no legal error existed in his findings. The exhibition of the will and of the testator’s signature attached thereto, and his declaration to the witness that it was his last will and testament, and his request to the witness to attest the same, were, we think, a sufficient acknowledgment of the signature and publication of the will, and the finding that these acts were done before the witness had completed his signature as a subscribing witness, is sufficiently sustained by the evidence. The statute is, in our judgment, complied with if the declaration and acknowledgment are simultaneous with the signature of the witness, and certainly if those acts are all done before the witness has completed his signature as an attesting witness, and on the same occasion. The effort to show that the attestation was not completed because the witness omitted to add to his signature his place of residence was, we think, *274 unsuccessful, and, taking his whole evidence together, we think it was sufficient to authorize the surrogate to find, as he did, that there was a complete execution and attestation of the will. The judgment should be affirmed, with costs to be paid by the appellants. All concur, except Huger, Ch. J., not voting. Judgment affirmed.