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Page:Popular Science Monthly Volume 24.djvu/542

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without spectacles. Mr. Smith then affixed his own signature at the request of the deceased, as an attesting witness. Mr. Wilsey, the other witness, was then called in from the adjoining room, when the testator said, "I want you to sign this will," Mr. Smith at the same time handing it to him. While still in Smith's hand, the latter asked the testator if he acknowledged it to be his last will and testament. He said "Yes." Wilsey then signed, when Mr. Baskin said, "That kills the other will." No conflict of evidence existed. Both witnesses agreed that the signature of the testator was affixed before Wilsey came into the room, and that Mr. Baskin did not expressly state in his presence that he had signed the will. The surrogate said this was no will, for it had not been signed in the presence of each attesting witness, but the Supreme Court reversed his decree, and the Court of Appeals affirmed the Supreme Court, holding: "Where the testator produces a paper bearing his personal signature, requests the witnesses to attest it, and declares it to be his last will and testament, he thereby acknowledges the subscription within the meaning of the statute" (Baskin vs. Baskin, 36 N.Y., 416). In fact, it is not even necessary that the subscribing witnesses should be shown the signature of the testator to the will at the time of acknowledging its execution.

In 1866 the will of Samuel Mott came before the Surrogate of Queens County, Long Island, for probate. It was contested upon the ground, among others, that it had not been signed in the presence of each witness, they signing after the testator but on different days, and that at least one of them had not so much as seen Mr. Mott's signature, the document being so folded when executed as to hide the name. The surrogate admitted it, however, the Supreme Court and Court of Appeals affirming his decision (Willis vs. Mott, 36 N. Y., 486; Hoystradt vs. Kingman, 22 N. Y., 372). So in the case of Ellis vs. Smith, decided in 1754 (1 Vesey, Jr., 11) by Lord Chancellor Hardwicke, assisted by Sir John Strange and the Chief-Justice of the Common Pleas and Chief Baron of the Exchequer, it was held that a testator's declaration was equivalent to an actual signing in the presence of the witnesses, a rule unchanged by the statute under consideration.

These cases show that considerable latitude is tolerated under this section, but that one of two facts must transpire in order to comply with its terms—either an actual subscribing by the testator in the presence of each of the witnesses before they sign; or a clear, indisputable acknowledgment to each of them that the instrument has been already so subscribed by him (Chaffee vs. Baptist Missionary Convention, 10 Paige, R. 85). Of course, in the latter case, if the subscription subsequently appears wanting, such acknowledgment amounts to nothing; there is no will.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument, so subscribed, to be his last will and testament.