the attestation clause, which was written across the entire face of the will, it was held to be a subscription by the testator at the end of the will within the meaning of the statute, as nothing dispositional followed the signature.98 So where a testatrix signed in the middle of the attestation clause it was properly held a compliance with the statute." Where anything actually dispositional is placed after the signature of the testator, the will clearly is not subscribed at the end thereof, within the meaning of the statute,' and it has been even held that where appointment of executors is placed after the testator's signature, the will is not subscribed at the end for the purposes of the statute.2

It is the law of this State that a testator must sign before the witnesses to the will, and a subscription by testator, after the witnesses have signed their names to it, is not a subscription within the statute."

The incorporation of separate or extraneous writings or documents of a dispositional nature, by a cross-reference contained in a will, is not permitted under the present construction of the statute of this State. Nor does the probate of the will itself entitle such writings, if of a dispositional nature, to be probated as part of the will, unless they also are executed with the formalities required by the statute. These cases are entitled to be regarded as overthrowing any possible intimation to the contrary, although such intimations are by judges of great position and in line with the rule in most other states and countries. When separate testamentary papers are executed at the same time, each with the due formali

98 Matter of Beck, 6 App. Div. 211; Matter of Murphy, 48 id. 211; Matter of Donner, 37 Misc. 57.

99 Matter of De Hart, 67 Misc. 13. 1 Supra, p. 112, note 85; Matter of Whitney, 153 N. Y. 259; Matter of Albert, 38 Misc. 61; Matter of Gibson, 128 App. Div. 767.

2 Matter of Gedney, 17 Misc. 500. 3 Jackson v. Jackson, 39 N. Y. 163; Sisters of Charity v. Kelly, 67 id. 409, 413. Sed cf. In re Karrars' Will, 118 N. Y. Supp. 427; cited infra, p. 126.

4 Matter of Will of O'Neil, 91

N. Y. 516, 523; Cook v. White, 43 App. Div. 388, 393; affd., 167 N. Y. 588; Matter of Andrews, 43 App. Div. 394, 501; affd., 152 N. Y. 1; Matter of Emmons, 110 App. Div. 701; Booth v. Baptist Church, 126 N. Y. 215, 247; Cf. Matter of John Tonnele's Will, 5 N. Y. Legal Observer, 254.

5 Matter of Brand, 68 App. Div. 225.

6 Brown v. Clark. 77 N. Y. at p. 377; Matter of Conway, 124 id. at p. 466; Vogel v. Lehritter, 139 id. at p. 235.

ties required by the statute for acts of testamentation, both are regarded as constituting one instrument for purposes of construction. But in Matter of John Tonnele's Will it was held, that for purposes of probate the addition of a schedule or map after the subscription was to be taken as part of the will, though not subscribed.8

The law already laid down concerning the due execution of wills is equally applicable to the execution of codicils, as will be seen hereafter."

Will Must be Subscribed by Testator. Such subscription shall be made 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.10

At least two subscribing witnesses to a will are now an indispensable feature of the act of testamentation, except as indicated in section 16 of this act. In probating a written will witnesses are competent, although they may not be experts, to testify to the testator's mental condition at the time of making his will, and they consequently may be asked the direct question. The witnesses are ordinarily selected from among those acquaintances who are of most weight in the community. But circumstances may prevent such a particular selection, and then any disinterested acquaintances, even if most recent, may witness the will. The capacity of witnesses to wills will be considered more at large hereafter in the more appropriate place.11

Wills of personalty, executed in accord with the law of a foreign domicile, where testator dies, are as a rule sufficiently executed under the maxim "ler domicilii regit actum.” 12 It is otherwise

7 Matter of Brand, 68 App. Div. 225.

8 Matter of John Tonnele's Will, 5 N. Y. Legal Observer, 254.

9 § 2, Decedent Estate Law.

10 § 21,

subd. 2.

Decedent Estate Law,

11 Infra, p. 127 seq.

12 See below under $ 23, Decedent Estate Law; Moultrie v. Hunt, 23 N. Y. 394; Dupuy v. Wurtz, 53 id.

536; Cf. § 2611, Code Civ. Proc. now 23, Decedent Estate Law; Matter of Rubens, 128 App. Div. 626; Dammert v. Osborne, 140 N. Y. 30; and see "The Renvoi Theory," 10 Columbia Law Journ. 190 sq. This theory is now much criticised in England. See London Law Mag. & Rev. for Feb. 1910; 26, Law Quar. Rev. 277.

with devises of real estate situated in this State. They must, wherever executed, conform to the requirements of the Wills Act then. in force in this State.1

It will be observed that the New York statute requires at least two witnesses to a will. But as some states require more than two, and the validity of devises of real property is always determined by the law of the State where the real property is situated,15 it is common practice to have more than two witnesses to a will where the testator's real property lies in divers jurisdictions. When this course is adopted the will may be also executed and published in conformity with the laws of the various States in which the real property affected has its situs. Such separate publications and. executions in various forms are each intended to be a compliance with the laws of a different country. Such republication and executions have no adverse or counteracting effect on the particular execution intended to comply with the laws of this State. In probating in New York such an instrument only proofs of the attestation and the forms of execution indispensable by the law of this State need be made.17 The others will be regarded as superogatory or as made ex abundanti cautela.

16

Subscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator, and in order to do this it is essential that they should either see the testator subscribe his name, or else that with the signature visible to the witnesses the intending testator should acknowledge it to be his. In either event the testator must have signed before the witnesses sign, or the execution is null.18 That the testator should sign before the witnesses is indispensible, as they attest the regularity of the signature and could not do so unless he had so signed.

13 See below.

14 Supra, § 21; Matter of Sizer, 129 App. Div. 7.

15 Lynes v. Townsend, 33 N. Y. 558, 561; White v. Howard, 46 id. 144; Matter of Kleets Will, 3 Misc. 385; Koppel v. Holm, 23 id. 557; Matter of Cooper, 53 id. 509; § 23, Decedent Estate Law.

16 See Younger v. Duffie, 94 N. Y. 535.

17 Matter of Sizer, 129 App. Div.

7; Dack v. Dack, 84 N. Y. 663; Matter of Balmforth, 60 Misc. 492, 497; Lyon v. Smith, 11 Barb. 124; Carroll v. Norton, 3 Bradf. 291; Hoysradt v. Kingman, 22 N. Y. 372.

18 Matter of Mackay, 110 N. Y. 611; Matter of Landy, 148 id. 403, 407; Matter of Clute, 37 Misc. 586; Jackson v. Jackson, 39 N. Y. 153; Sisters of Charity v. Kelly, 67 id. 409, 413.

The subscription of a testator may be made by the testator's signing his name, or by his making his mark. But it is said where the mark is made by another, he should not be a witness to the will.19 In the event that the subscription is by a mark made by testator, it is the testator's own subscription, and the usual written statement by another, to the effect that such mark is the testator's mark (e. g., John Doe X his mark), is no part of the subscription itself, and its absence is therefore immaterial.20 A subscription by testator's own mark is quite distinct from a subscription made by a witness at testator's direction.

The testator's subscription or mark may be made by a witness to the will, by testator's direction, at least if he is unable to write, and this method of subscribing a will is obviously regular under the statute, which provides for the very case.21 The Roman law, on the other hand, required such subscription by another to be made by an extra witness to a will, unless the will was holographic, when no subscription was necessary. This extra witness, who signed the testator's name, was called "octavus subsriptor." But the New York act does not require that the witness who signs for the testator shall be additional to the two required by the statute, although such extra witness may be employed. The statute requires at least two witnesses, but does not forbid more, if desired. In the event that the subscription required of the testator by the present Wills Act is made through the instrumentality of a witness, such subscription must be in the presence of the other witnesses, or else it must be acknowledged by the testator to the attesting witnesses for and as the testator's subscription. The principles of all the cases cited apply as much to a subscription which is made by the agency of another as to a subscription by the testator's own hand.

The declaration of a prior subscription may, however, proceed

19 Jarman on Wills, 73 (ed. of 1859); Matter of Murphy, 15 Misc. 208, 211. Cf. Worden v. Van Giesen, 6 Dem. 237.

20 Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 91; Matter of Foley, 55 Misc. 162; Jackson v.

Jackson, 39 N. Y. 147, 159. Cf. Matter of Benevatano, 38 Misc. 272. 21 2 R. S. 64, § 41; 8 22, Decedent Estate Law; Robins v. Coryell, 27 Barb. 556; Butter v. Benson, I id. 526.

from another by the testator's direction if made in his presence;22 and commonly the testator's professional man, in attendance and charged with the sufficiency of the execution, will make such request or declaration by the testator's authority, the testator merely acquiescing, and this, in the absence of fraud, is taken as the act of testator.23 When such a declaration is made by the testator's professional man in attendance, the general employment seems to imply an express authority to make the request: at least, proof of an express authority by the testator is sometimes absent in cases where a probate has been allowed.

24

In respect of domestic wills, the intending testator prudentially subscribes the will in the actual presence of the attesting witnesses, and such is the best and common practice under the present New York statute. This was also the practice under the Roman or civil law. But the present statute in New York on this point is not mandatory as to subscription in the presence of the witnesses, for it provides distinctly in the alternative, that testator may acknowledge the subscription to have been made by him to each of the attesting witnesses.25 Where the will is not signed in the presence of witnesses, the testamentary paper bearing the signature must be produced to the witnesses open,20 with the signature visible, so that they may be enabled to see for themselves such signature. If the signature is concealed from witnesses, the mere acknowledgment of signature will not suffice.27 The publication of the will is an act distinct from an acknowledgment of the signature.28

Whenever the will is not subscribed by the testator in the presence of the witnesses, the statute requires that his subscription shall be in some way acknowledged to the attesting witnesses by the testator. Such was substantially the common-law rule in regard

29

22 Gilbert v. Knox, 52 N. Y. 125; Matter of Carey, 24 App. Div. 531, 539; Matter of Nelson, 141 N. Y. 152.

23 Matter of Voorhis, 125 N. Y. 765; Matter of Nelson, 141 id. 152, 157; Matter of Engler, 56 Misc. 218.

24 The Roman Law was modified in the case of holographic wills, Const. 28, § 1, C. 6, 23.

25 Hoysradt v. Kingman, 22 N. Y. 372; Peck v. Cary, 27 id. 1, 29. 26 Baskin v. Baskin, 36 N. Y. 416; Matter of Landy, 148 id. 403.

27 Lewis v. Lewis, 11 N. Y. 221; Wooley v. Wooley, 95 id. 231, 235; Matter of Mackay, 110 id. 611.

28 Lewis v. Lewis, 11 N. Y. at p. 226; Baskin v. Baskin, 36 id. 416.

29 § 21, Decedent Estate Law;