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Bigart agt. Jones.

will as to accomplish this result." In my judgment to hold that Cecilia took a fee under the will would render the subse quent provisions meaningless, and defeat the apparent intent of the testator; but regarding her estate merely as a life estate which was obviously intended, all of the provisions of the will become harmonious, and each beneficiary will be protected.

It is worthy of remark that all of the beneficiaries under the will are relatives of the testator and natural objects of his bounty. Every will must necessarily receive construction. according to its peculiar provisions, as it is rare that two are found precisely alike in structure. If this view is correct, it follows that at the death of Cecelia, if she had left lawful issue her surviving, such issue would have been entitled absolutely to the estate, real and personal. As Cecilia died without leaving such issue the estate, real and personal, vested in the persons designated in the sixth clause of the will, subject to the payment of the bequest specified in the will. Such I deem to have been the intention of the testator as gathered from the entire will, and I do not think such intention should be defeated by declaring the devise contained in the sixth item repugnant to the devise contained in the fourth item of the will (Norris agt. Beyea, 13 N. Y., 273; Hatfield agt. Sneden, 42 Barb., 615; Terry agt. Wiggins, 47 N. Y., 512; Tyson agt. Blake, 22 N. Y., 558).

It seems to have been the purpose and intention of the testator to consolidate into one fund the real and personal estate, at the death or marriage of his widow, and to bequeath or devise the same accordingly, subject to the satisfaction of the burdens which he imposed upon his estate for the benefit of the persons designated therein to whom he gave certain sums by way of legacy (Lent agt. Howard, 89 N. Y., 169–177). The executor is justified in asking instruction and the complaint can be sustained for that purpose at least (Basty agt. Briggs, 56 N. Y., 407; Week agt. Root, 14 N. Y. W. Dig., 90; Wager agt. Wager, 89 N. Y., 161).

Matter of Catharine Shaffer, deceased.

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SURROGATE'S COURT.

In the Matter of Proving the last Will and Testament of CATHARINE SHAFFER, deceased.

Will-Insufficient signing and witnessing of a will,

Where a will has been so drawn as to allow blank spaces in the body thereof of such a nature as to allow the insertion of dispositions without interlineations, and

Where the testatrix does not subscribe her name in the presence of both witnesses, and does not acknowledge her signature to the witnesses, although she informs the witnesses that it is her will she wishes them to witness:

Held, that there was no sufficient signing of the will by the deceased in the presence of the witnesses, nor a sufficient acknowledgment to them that she had done so to satisfy the requirement of the statute, and that the paper was not entitled to be admitted to probate.

Westchester county, November, 1885.

A PAPER intended for a last will and testament was prepared and came into the hands of the deceased some time in 1882. There are several blank spaces in the body of it sufficiently large to permit the writing of disposing clauses without interlineations, and a space at the end of the paper for the signature. Spaces were also left for the day, month and year, which remained unfilled. Then follows an attestation clause, thus:

"Subscribed by the testator in the presence of each of us and at the same time declared by her to us to be her last will and testament, and thereupon we, at the request of the testator, sign our names hereto, as witnesses, this

day of

, 1882.

"CATHARINE SHAFFER,

"And is here signed.

Adm'x.

"J. M. DEARBORN,

M't Vernon.

"JOHN BERRY,

M't Vernon, N. Y."

Matter of Catharine Shaffer, deceased.

The paper so executed was propounded for probate by Charles F. Holm, one of the persons named as executors therein. John Berry, one of the witnesses, testified that the deceased came into his store with a paper so folded that he could see no part of the writing, except the last line of the attestation clause, "and asked me if I would witness her sig nature, and she made her signature in my presence and asked me to witness it," which he did, and then she said she must go in to see Mr. Dearborn, and get him to do the same thing. Mr. Dearborn's store was a few doors from Mr. Berry's, and he was not present when the paper was signed by Mrs. Shaffer. Berry could not remember that Mrs. Shaffer said it was her last will and testament, but if she had, thinks he would remember it. Mr. Dearborn, the other witness, had no recollection whatever on the subject, but admitted the genuineness of his signature. Both of them had acted as witnesses to a will of the deceased in 1878, the circumstances attending the execution of which they recollected. Subsequently, Mary A. King, a servant of the deceased, to whom a legacy of $200 had been given by the alleged will, testified that she accom panied the deceased to the stores of the respective witnesses, and that the deceased substantially asked Mr. Berry if he would sign her will and testament, to which he assented; that she and the deceased then went to Mr. Dearborn's store and asked him to sign her will.

Charles F. Holm, in person (Isaac N. Mills, of counsel), for proponent.

Chauncey Shaffer, for Louisa Portens and another, heirs,

contestants.

Jacob Fromme, for George W. Shaffer, husband, contestant. Joseph H. M. Porter, for Kate M. Penrose, heir.

Wm. M. Skinner, Jr., guardian ad litem, for minor heirs.

Matter of Catharine Shaffer, deceased.

COFFIN, S.-The contestants contend that the will was not properly executed, taking the statements of Mrs. King to be true, because the testatrix did not acknowledge her signature to Dearborn, one of the witnesses, who did not see her sign her name, and cite on this point the case of Mitchell agt Mitchell (16 Hun, 97). There the deceased came into the store where the two witnesses were and handed out a paper and said: "I have a paper that I want you to sign." One of them took the paper and partly opened it and saw what it was. The witness probably, from his testimony, saw the signature. The testator said: "This is my will, I want you to witness it." Then the two witnesses signed the paper under the attestation clause. It does not appear that the other witness saw the testator's signature. The testator then took the paper and said: "I declare this to be my last will and testament." At the time of this transaction the paper had the name of the deceased at the end of the paper, but the witnesses did not see him sign, nor was there any acknowledgment by him of his signature in their presence, unless the facts above stated are such acknowledgment. The court held that there was no acknowledgment of the signature to either of the witnesses and rejected the will. This decision was affirmed on appeal in 77 New York, 596, but by a divided

court.

In Chaffee agt. The Baptist Missionary Society (10 Paige, 85) the testatrix, who had subscribed the will by making her mark, but not in the presence of the attesting witnesses, afterwards, and in their presence, placed her finger on her name and said: "I acknowledge this to be my last will and testament." It was held that the will was not well executed. This is approved in the case of Willis agt. Mott (36 N. Y., 486). It is difficult to see any distinction between the case of the putting the finger upon the name with the mark and declaring it to be his last will and testament and that of a presentation of a paper with the testator's signature written by him at the foot of it with a declaration that it is his last

Matter of Catharine Shaffer, deceased.

will and testament. I am satisfied on the whole that the decision in the case of Mitchell agt. Mitchell required that more should be done than merely requesting the witnesses to subscribe their names to a paper with the name of the alleged testator at the end of it, which he says is his last will and testament. By doing so he complies with only two of the distinct requirements of the statute. The other one, that he shall sign it in their presence, or acknowledge that he has signed it, is as equally distinct and imperative as the others, and in the absence of proof that he did one or the other, the requirements of the statute have not been sufficiently complied with to render it a valid testamentary act. But in the case of Baskin agt. Baskin (36 N. Y., 416) it was held to be a sufficient acknowledgment of the testator's signature where he produces a paper to which he has personally affixed his name, and requests the witnesses to attest it and declares it to be his last will and testament, and that in so doing he does all that the law requires. This doctrine seems to be distinctly affirmed In the Matter of Will of Phillips (98 N. Y., 267). Curiously it appears from the surrogate's report of the case in 8 Denio, 459, that the testator did acknowledge his signature to both the witnesses, Skinner and Beach, during his conversation with each of them (And see Rumsey agt. Goldsmith, 3 Den., 494). Hence, although the reasoning of judge LEARNED in the case of Mitchell agt. Mitchell may seem the stronger, the result reached in 98 New York is controlling here, and assuming that the paper was executed and properly attested in the presence of one witness and presented to the other so executed and attested by him, then if the testimony of Mrs. King is to be regarded as true, it might be held that it was well executed as a will.

But I am unable to bring my mind to a belief of her credibility. She and Mr. Berry are in conflict as to their statements of the transaction. He is one of the leading business men in Mount Vernon, a man of character, intelligence and large experience in affairs, and the same may be said of Mr. DearVOL. II 63

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