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Page:Popular Science Monthly Volume 24.djvu/541

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LAST WILLS AND TESTAMENTS.

ment in favor of my mother, who is to take everything I possess; in case of her death, then my sister inherits all my effects. L. Simon and Arthur Sewell I appoint executors.

H. J. Montague."

On the back of this scrap, also in pencil, occurs:

"Witnessed byT. R. Edwards,
Louis M. Simon."

In cases of contracts, lead-pencil agreements have repeatedly been held sufficient (Merrit vs. Clason, 12 Johns., 102; Clason vs. Bailey, 14 id., 484; Brown vs. Butchers' and Drovers' Bank, 6 Hill, 443), and the same reasoning applicable to such applies also to testaments. It is certainly to be hoped that the tendency of the decisions in this respect will change. The door for the admission of fraud is here opened too wide. To erase and rewrite in the body of the will is much too easily and cleverly accomplished, and this temptation should be removed by statutory enactment or judicial interpretation.

A mark or cross has been held a good subscription. Some years ago Moses W. Jackson left a will signed—

his
Moses W.XJackson.
mark.

The surrogate adjudged this sufficiently subscribed; the Supreme Court upheld the surrogate, and the Court of Appeals sustained the Supreme Court, holding that it was not even necessary that the words "Moses W. Jackson, his mark" should have been written before he made the X. The law would undoubtedly admit the cross if the words were entirely wanting, under proper evidence (Jackson vs. Jackson, 39 IT. S., 153). If the testator requests a third person to subscribe the will for him, and it be done in the presence of the witnesses, it comes within the statute (Campbell vs. Logan, 2 Brad., 90; Van Hanswyck vs. Wiesl, 44 Barb., 494). But such third person must himself also sign as a witness.

2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.

On December 1, 1865, William Baskin made a last will, and five weeks afterward died at the age of eighty-nine years. Thirteen years before he had made a previous will, which still continued in existence. At his death the will of 1865 was offered for probate to the Surrogate of Yates County, New York, but its admission was contested. The evidence showed that the last will was drawn by one Henry Smith on the morning of December 1, 1865, at the bedside of the deceased; that the whole was read over to him, clause by clause, and that Mr. Baskin at the completion of the reading sat up on the side of the bed and wrote his name at the foot of the will without assistance and