tune, for he may utterly destroy its value. Unless proof aliunde is obtainable, showing that the requirements of the statute were duly observed, there is great probability that the will will be rejected by the surrogate, and his decree sustained by appellate tribunals.
In November, 1850, an instrument, dated February 2, 1849, was offered for probate to the Surrogate of Kings County, New York, as the last will and testament of Thomas Lewis. It devised all his real and personal estate to his wife; but its probate was opposed by the heirs of the deceased. This document was signed in the proper handwriting of Mr. Lewis; it had two subscribing witnesses, while attached to the will and above the signatures of the witnesses was an attestation clause in the following words:
"The above-written instrument was subscribed by the said Thomas Lewis in our presence, and acknowledged by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament, and we, at his request, have signed our names as witnesses hereto."
On the contest, Ferris Tripp, one of the witnesses, swore that he was a clerk in the store of the deceased at the date of the will, and that Wing, the other witness, was also a clerk; that he (the witness) signed his name at the end of the attestation clause, at the request of the testator; that, on the occasion when he did so, Wing and he were called by the deceased into his private office, where he had a paper, of which he turned up so much as would allow them to write their names thereon, requesting them to sign the same and add their residences; that he also then said, "I declare the within to be my free will and deed"; that this was all that was said, according to his recollection, and that he and Wing then signed their names to the instrument where they appeared; that he did not then know to a certainty what the instrument was, but thought it a will from the fact that the deceased had that morning sent out and procured a blank will. On cross-examination this witness testified that at the time he signed his name to the instrument it was so folded or placed upon the desk that he saw no part of the contents, and that neither the same nor any part of it was read to him; that he did not see the testator sign it, nor did he see his signature to it when he signed as a witness.
The other witness testified in substance that he signed his name to the alleged will in the office of the deceased; that he was unable to say what occurred on that occasion, but that, according to his recollection, he signed at the request of the deceased; that he had no recollection that the deceased said anything else to him at the time he signed, unless it was "to see him sign the document"; that he did not recollect that the deceased signed the instrument in his presence; that he had no recollection that Tripp, the other witness, was present when he signed, and could not state anything further which occurred or was said or done by the deceased on the occasion. On his cross-examination he