Note on Examination as to Writings not in issue. ness of the standards would, except in accidental cases, be just as uncertain as that of the writings whose genuineness they were introduced to test. Under such a state of things, I think the rule a wise one which excludes the inquiries as remote and irrelevant. The judgment should be reversed and a new trial ordered. In Brown v. Hall, 85 Va., 146; s. c. 7 Southeast. Rep., 182, upon an ssue of devisavit vel non as to an Holographic will, it was held error not to allow one who was acquainted with the handwriting of the propounder to testify as to whether the will was in his handwriting in order to show that it was not in the handwriting of testatrix. NOTES OF RECENT CASES AS TO EXAMINING WITNESS AS TO OTHER WRITINGS. Georgia Travelers Ins. Co. v. Sheppard, 85 Ga., 751; s. c., 12 Southeast. Rep., 18 (to test the skill of an expert as to handwriting on crossexamination, writings or parts of writings no matter by whom written, may be exhibited to him for comparison with the handwriting in question; and neither the witness nor the opposing counsel is entitled to know what writings will be used for such purpose, or whether genuine or not). Kentucky: Andrews v. Hayden, 88 Ky., 455; s. c., 11 Southwest. Rep., 428 (where a non-expert witness who is acquainted with a person's handwriting testifies as to his signature, it is not proper on cross-examination to show the witness a number of spurious signatures prepared for the purpose, and to ask him to select the genuine signature). Michigan: Johnston Harvester Co. v. Miller, 72 Mich., 265; s. c. 40 Northwest. Rep., 429 (it is not error upon the cross-examination of handwriting experts, who have no knowledge of the handwriting of the person whose signature is dis puted, to examine them as to whether the signatures of another person to documents already in evidence were actually written by the same person). Missouri Rose v. First National Bank, 91 Mo., 399; s. c. 3, Southwest. Rep., 876 (a bank cashier, who testified as to the genuineness of the signature to a check disputed by plaintiff, was shown the signatures of plaintiff's name to two blank checks and was asked in whose handwriting they were. The witness replied that he would pay them as plaintiff's checks. The plaintiff was then allowed to introduce such signatures in rebuttal, and show that they were written by third persons during the progress of the trial. Held, that this was error). New York: First National Bank v. Hyland, 53 Hun, 108; s. c. 25 State Rep., 446; 6 N. Y., Supp., 87 (the judgment of an expert as to handwriting may properly be tested by inquiries as to his opinion in regard to the genuineness of signatures to other notes and endorsements which are in evidence). Note on Preappointed Witnesses. NOTE ON PREAPPOINTED WITNESSES. [See on this subject: Maine Miss. Soc. v. Ingalls, Ill., 1893, 35 Northeast. Rep. 743; Carleton v. Carleton, 40 N. H., 14, s. c. Thayer's Cas, on Ev. 772-816.] At common law if an instrument was attested by a subscribing witness that witness must be produced or accounted for before any other proof of execution could be given, and, if accounted for, his handwriting must be proved. See the rule fully stated in the opinion of Justice Nelson, in Pelletreau v. Jackson, 11 Wend., 110, and of Senator Tracy, on affirmance sub nom., Jackson v. Waldron, 13 Wend., 178, at p. 196. By statute in New York (N. Y. L. 1883, p. 200, c. 195) and in some other states, a subscribing witness is not necessary unless a subscribing witness is necessary to the validity of the instrument. For a list of such instruments see 1 Univ. L. Rev., p. 36. Such instruments are now usually acknowledged, or proved by the subscribing witness before a notary or other officer (which may be done after suit brought, unless the acknowledg ment or proof was essential to validity, Holbrook v. N. J. Zinc Co., 57 N. Y., 616) instead of producing him at the trial. Acknowledgment of a deed dispenses with the necessity of calling a subscribing witness. Simmons v. Havens, 101 N. Y., 427. Rugg v. Rugg, 83 N. Y., 593. RUGG v. RUGG. New York Court of Appeals, 1881. [Reported in 83 N. Y., 593; affirming 21 Hun, 383.] One named in the will as executor is not thereby rendered incompetent to testify as a witness on the probate of the will. The due execution of a will may be established even in opposition to the testimony of the subscribing witnesses. The subscription by the testator must be shown to have been made prior to that of the subscribing witnesses. Failure of recollection by the subscribing witnesses cannot defeat probate if the attestation clause and the surrounding circumstances satisfactorily prove execution of the will. Appeal from the decree of a surrogate in probate proceedings. The Supreme Court at General Term affirmed the decree. HARDIN, J., said: Jackson v. Jackson (39 N. Y., 153) is an authority for holding that the witnesses who are to attest the subscription and publication of a will by a testator should sign the same after the subscription by the testator. The declaration of the testator may be that it is his last will, on the same occasion of the signing and witnessing, and it is not essential that it immediately precede the subscription. We are called upon to review the evidence and from it determine whether there was a due execution of the will shown by it. Both of the subscribing witnesses were called, and gave evidence touching the circumstances of the execution of the will; and Jenks, who was named as one of the executors, was also called as a witness in behalf of the proponents, and gave evidence of the facts and circumstances attending the execution of the will. His testimony was objected to by the contestants. But the authorities require us to hold that he was a competent witness, and that his testimony was properly received by the surrogate. (McDonough v. Loughlin, 20 Barb., 239; Children's Aid Society v. Loveridge, 70 N. Y., 387; Pruyn v. Brinkerhoff, 7 Abb. Pr., N. S., 401.) We must, in considering the question raised in respect to the Rugg v. Rugg, 83 N. Y., 593. due execution of the will, give effect and force to the evidence given by Jenks. He was a man about sixty years of age, had been accustomed to draw wills, and supervise their execution, and the evidence given by him is to the effect that the essentials to a due execution were all observed, and he is emphatic in his statements that the testator subscribed his name before the subscribing witnesses. It is settled beyond doubt or discussion, that the due execution of a will may be established by other evidence than such as may be derived from the subscribing witnesses. Indeed, in opposition to the evidence of subscribing witnesses, wills have been established and admitted to probate. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 425; and op. of DENIO, J., in Tarrant v. Ware, quoted in a note to the last case; Jauncey v. Thorn, 2 Barb. Ch., 40). But it is said that one of the subscribing witnesses in the case before us stated that the testator did not sign until after the witnesses had subscribed their names. During the course of his examination he became somewhat in doubt as to the order of the signing, and he stated, viz: "I thought first it was after, and it seems as if it was. I may be mistaken." The other witness, in the course of his examination stated, viz.: "I am not positive who signed first; think Mr. Hooker did. Mr. Hooker first signed it, Mr. Jenks showing him where; he rose, I sat down and asked Mr. Jenks where I should sign." Then in answer to the question, viz.: "Do you recollect that Mr. Rugg had signed this before Mr. Jenks told you where to sign?" he said, "I do not recollect." * * * He is further asked, viz.: Ques. "Is it not your best recollection, that immediately after you signed, Mr. Jenks picked up the paper, folded it, and you and Mr. Hooker immediately passed out," and the witness answered: "I think it was." Ques. "Before that you had seen Mr. Rugg sign?" Ans. "Yes, sir, after the time it was folded Hooker and I passed out." He subsequently stated, "I do not remember that Rugg signed after us; I saw him sign." Thus we see that the two witnesses are not clear and positive. in relating the order in which the events, stated by Jenks in his evidence, took place. But we think their evidence, taken with his, gives rise to a very strong presumption, that, after the testa Rugg v. Rugg, 83 N. Y., 593. tor had signed his name, the two witnesses became subscribing witnesses, by placing their names below the attestation clause. In Gwilliam v. Gwilliam (3 Swabey & T., 200), it was held that the court is at liberty to judge from the circumstances of the case, whether it was probable that the testator's name was on the will or not, at the time of the attestation; and, being of the opinion that it was, to pronounce for the will and its due execution. That was a case where two old ladies were the subscribing witnesses, and they testified they did not remember the testator's name being on at the time they became subscribing witnesses. SIR C. CRESSWELL upheld the proofs and admitted the will to probate. The same principle is asserted in the Matter of John Kellum's Will (52 N. Y., 517). CHURCH, Ch. J., says: "The principle is that a mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution. We have read all the evidence touching the execution of the will before us, and we cannot resist the conclusion that the testator's name was written by him to the will before the subscribing witnesses signed their names in his presence and in the presence of each other, and the testator declared the instrument to be his last will and testament. Some questions were quite leading, but as the witnesses were not clear in recalling the events attending the execution of the will, we cannot say that the surrogate abused his discretion in allowing them, and therefore we must decline to interfere with the rulings made upon the hearing. The Court of Appeals affirmed the judgment. MILLER, J. We think that the evidence was sufficient to establish that the will was executed in accordance with the provisions of the Revised Statutes and the decisions of this court. The evidence of the subscribing witnesses upon the crossexamination, which, it is claimed, tended to show that they did not sign the will after it was signed by the testator, is insufficient to establish that it was not properly executed. Hooker, one of them, after stating that the testator signed after he did, appears |